Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will be subject to the accuracy of the representations and warranties on the part of the Company contained herein, as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to the provisions of this Agreement, to the performance and observance by the Company of all of its covenants and agreements herein contained and to the following additional conditions: (a) No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, shall have been issued and no proceedings for that purpose shall have been instituted or threatened by the SEC; the Final Prospectus shall have been filed with the SEC pursuant to Rule 424(b) under the Securities Act not later than the close of business on the second business day following the execution and delivery of this Agreement; and any material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the SEC within the applicable time periods prescribed for such filings by Rule 433 under the Securities Act.
Appears in 9 contracts
Sources: Underwriting Agreement (Wells Fargo & Company/Mn), Underwriting Agreement (Wells Fargo & Company/Mn), Underwriting Agreement (Wells Fargo & Company/Mn)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares Securities on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate certificates furnished pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No For the period from and after effectiveness of this Agreement and prior to the Closing Date:
(i) no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any post-effective amendment to the Registration Statement, shall be in effect and no proceedings for such purpose shall have been instituted or, to the Company’s knowledge, threatened by the Commission, and the Company shall not have received from the Commission any notice under pursuant to Rule 401(g)(2) under the Securities Act that would prevent its use, objecting to use of the automatic shelf registration statement form (unless the Securities are duly registered in the manner contemplated by Rule 401(g)(2) to the satisfaction of the Representatives prior to the Closing Date);
(ii) the Company shall have been issued filed any Preliminary Prospectus and no proceedings for that purpose shall have been instituted or threatened by the SEC; the Final Prospectus shall have been filed with the SEC pursuant to Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430B, and such post-effective amendment shall have become effective (if not later than automatically effective under the close rules of business on the second business day following Commission);
(iii) the execution and delivery of this Agreement; Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act Act, shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule or, to the extent applicable, under Rule 164(b); and
(iv) all requests by Rule 433 under the Securities ActCommission for additional information shall have been complied with to the reasonable satisfaction of the Representatives.
Appears in 9 contracts
Sources: Underwriting Agreement (Raymond James Financial Inc), Underwriting Agreement (Raymond James Financial Inc), Underwriting Agreement (Raymond James Financial Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Notes shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to the provisions of this Agreement, to the performance and observance by the Company of all of its covenants and agreements herein contained and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, shall have been issued and no proceedings for that purpose shall have been instituted or threatened by the SEC; the Final Prospectus shall have been filed with the SEC pursuant to Rule 424(b) under the Securities Act not later than the close of business on the second business day following the execution and delivery of this Agreement; and the final term sheet contemplated by Section 4(d) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act Act, shall have been filed with the SEC within the applicable time periods prescribed for such filings by Rule 433 under the Securities Act.
Appears in 7 contracts
Sources: Underwriting Agreement (Wells Fargo & Company/Mn), Underwriting Agreement (Wells Fargo & Company/Mn), Underwriting Agreement (Wells Fargo & Company/Mn)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Notes shall be subject to the accuracy of the representations and warranties on the part of the Company Transaction Entities contained herein, herein as of the date hereof, as of the date of Applicable Time and the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Operating Partnership and the Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance by the Operating Partnership and observance by the Company of all of its covenants and agreements herein contained their respective obligations hereunder and to the following additional conditions:
(a) No On the Closing Date, (i) the Registration Statement shall have been filed by the Operating Partnership and the Company with the Commission not earlier than three years prior to the date hereof and became effective upon filing in accordance with Rule 462(e) of the 1933 Act Regulations and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, Statement shall have been issued and no under the 1933 Act or proceedings for that purpose shall have been instituted therefor initiated or threatened by the SEC; Commission, and any request on the Final part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters, and no notice of objection of the Commission to the use of such form of registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the 1933 Act Regulations has been received by the Operating Partnership or the Company, (ii) each preliminary prospectus and the Prospectus shall have been filed with the SEC pursuant to Commission in the manner and within the time period required by Rule 424(b) under without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the Securities Act not later than requirements of Rule 430B), and no order preventing or suspending the close use of business on any preliminary prospectus or the second business day following Prospectus shall have been issued by the execution and delivery Commission or the securities authority of this Agreement; and any jurisdiction, (iii) any material required to be filed by the Company Operating Partnership pursuant to Rule 433(d) under of the Securities 1933 Act Regulations shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule 433, (iv) the Operating Partnership shall have paid the required Commission filing fees relating to the Securities within the time period required by Rule 433 under 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b), and (v) there shall not have come to your attention any facts that would cause you to believe that the General Disclosure Package or the Prospectus, at the time it was, or was required to be, delivered or made available to purchasers of the Securities, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading.
(b) The Operating Partnership and the Company shall have requested and caused Dentons US LLP, counsel for the Operating Partnership and the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the matters attached as Exhibit A hereto. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the States of Texas, New York, Maryland or Delaware (to the extent limited to Delaware corporate laws) or the federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company or the general partner of the Operating Partnership and public officials. Such opinion shall also cover any amendments or supplements thereto at the Closing Date. In addition, Dentons US LLP shall state that, although such counsel has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the General Disclosure Package or the Prospectus, no facts have come to such counsel’s attention that have caused such counsel to believe that (i) the Registration Statement or any amendment thereto, at the time of filing of the most recent combined Annual Report on Form 10-K of the Operating Partnership and the Company or as of the “new effective date” with respect to the Underwriters and the Securities pursuant to, and within the meaning of, Rule 430B(f)(2), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus, or any amendment or supplement thereto, as of their respective issue dates or at the Closing Date, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements, related notes and schedules and other financial information included or incorporated by reference therein or omitted therefrom, as to which such counsel need express no statement). With respect to statements contained in the General Disclosure Package, any statement contained in any of the constituent documents that are also part of the General Disclosure Package shall be deemed to be modified or superseded to the extent that any information contained in subsequent constituent documents modifies or replaces such statement.
(c) The Representatives shall have received from Sidley Austin LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the disclosure in the Registration Statement, the General Disclosure Package and the Prospectus and other related matters as the Representatives may reasonably require, and the Transaction Entities shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. In rendering such opinion, such counsel may rely, as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of responsible officers of the Company or the general partner of the Operating Partnership and public officials. In addition, in rendering such opinion, such counsel may rely on and assume the accuracy of an opinion of Dentons US LLP, counsel for the Operating Partnership and the Company, dated as of the Closing Date, with respect to matters of Maryland law.
(d) Each of the Company and the Operating Partnership shall have furnished to the Representatives a certificate, signed by the Chairman of the Board or President and the principal financial or accounting officer of the Company on behalf of the Company, for itself and as the sole member of the general partner of the Operating Partnership, respectively, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the General Disclosure Package and the Prospectus and any amendments or supplements to the foregoing, as well as this Agreement, and that:
(i) the representations and warranties of the Transaction Entities in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Transaction Entities have complied with all the agreements and satisfied all the conditions on their part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or, to the Company’s or Operating Partnership’s knowledge, are threatened by the Commission, no notice of objection of the Commission to the use of such form of registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the 1933 Act Regulations has been received by the Company or the Operating Partnership and no order preventing or suspending the use of any preliminary prospectus or the Prospectus shall have been issued by the Commission or the securities authority of any jurisdiction; and
(iii) since the date of the most recent financial statements included or incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus (for the avoidance of doubt, exclusive of any amendment or supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the General Disclosure Package and the Prospectus (for the avoidance of doubt, exclusive of any amendment or supplement thereto).
(e) At the date hereof, the Representatives shall have received a letter from Ernst & Young LLP dated such date, in form and substance reasonably satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus.
(f) On the Closing Date, the Representatives shall have received a letter, dated the Closing Date, from Ernst & Young LLP to the effect that they reaffirm the statements made in the applicable letter furnished pursuant to subsection (e) of this Section 6, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date.
(g) Subsequent to the date hereof or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there shall not have been (i) any change or decrease specified in the letter or letters referred to in subsection (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business, assets, prospects or properties of the Transaction Entities and the 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 General Disclosure Package and the Prospectus, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Securities as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus (for the avoidance of doubt, exclusive of any amendment or supplement thereto), or (iii) any downgrading in, or withdrawal of, the rating of any debt securities of, or guaranteed by, the Operating Partnership or the Company by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the 1934 Act), or any public announcement that any such organization has under surveillance or review its rating of any such securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading action, of such rating).
(h) On the Closing Date, counsel for the Underwriters shall have been furnished with such other documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Transaction Entities in connection with the issuance and sale of the Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters.
(i) Prior to the Closing Date, the Operating Partnership and the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(j) The Securities shall be eligible for clearance, settlement and trading through the facilities of DTC.
(k) At the Closing Date, the Securities shall be rated at least “Baa3” by ▇▇▇▇▇’▇ Investors Service, Inc. and “BBB-” by Standard & Poor’s Ratings Services and the Operating Partnership and the Company shall have delivered to the Representatives evidence reasonably satisfactory to the Representatives confirming that the Securities have such ratings; and since the execution of the Agreement, there shall not have occurred any downgrading in, or withdrawal of, the rating of any debt securities of or guaranteed by the Operating Partnership or the Company by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the 1934 Act), or any public announcement that any such organization has under surveillance or review its rating of any such securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating). Any certificate or document signed by any officer or representative of the Transaction Entities and delivered to the Underwriters, or to counsel for the Underwriters, shall be deemed a representation and warranty by each of the Transaction Entities to the Underwriters as to the statements made therein. The Transaction Entities will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the Closing Date or otherwise. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Operating Partnership in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the offices of Sidley Austin LLP, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 5 contracts
Sources: Underwriting Agreement (American Campus Communities Inc), Underwriting Agreement (American Campus Communities Operating Partnership LP), Underwriting Agreement (American Campus Communities Operating Partnership LP)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of Execution Time and the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No If filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(a) hereof, any other material required to be filed by the Company pursuant to Rule 433(d) shall have been filed in the manner and within the time period required by Rule 433 and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened threatened.
(b) The Company shall have furnished to the Representatives the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Managing Chief Counsel and Corporate Secretary of the Company, dated the Closing Date (which opinion may be relied upon by Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Underwriters, as to matters of Pennsylvania law), to the effect that:
(i) the Company is a corporation duly incorporated and is presently subsisting as a corporation under the laws of the Commonwealth of Pennsylvania with all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, except for such power and authority the absence of which would not have a material adverse effect on the Company and its consolidated subsidiaries taken as a whole or materially and adversely affect its ability to perform its obligations under this Agreement, the Indenture and the Securities, and the Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended;
(ii) PNC Bank is validly organized and existing as a national banking association in good standing under the laws of the United States, with all requisite power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, except for such power and authority the absence of which would not have a material adverse effect on PNC Bank;
(iii) all the outstanding shares of capital stock of PNC Bank have been duly and validly authorized and issued and (except as provided in 12 U.S.C. § 55) are fully paid and nonassessable, and all outstanding shares of capital stock of PNC Bank are owned by the SEC; Company either directly or through wholly owned subsidiaries of the Company free and clear of any perfected security interest and, to the knowledge of such counsel after due inquiry, any other security interests, claims, liens or encumbrances;
(iv) the Company’s authorized equity capitalization, if set forth in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, is as set forth in the Final Prospectus shall and, if the Securities are to be listed on any stock exchange, authorization therefor has been given, subject to official notice of issuance and evidence of satisfactory distribution, or the Company has filed a preliminary listing application and all required supporting documents with respect to the Securities with such stock exchange and nothing has caused such counsel to believe that the Securities will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution and the satisfaction of other requirements which counsel reasonably believes will be satisfied in due course;
(v) the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, receivership, readjustment of debt, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally or general equitable principles (whether considered in a proceeding in equity or at law); and the Securities have been filed duly authorized and, when executed and authenticated in accordance with the SEC provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture, and enforceable against the Company in accordance with their terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, receivership, readjustment of debt, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally or general equitable principles (whether considered in a proceeding in equity or at law);
(vi) to the best knowledge of such counsel, there are no actions, suits, proceedings or investigations pending or threatened against the Company or PNC Bank in any court or before or by an arbitrator or governmental authority, of a character required to be disclosed in the Registration Statement which are not disclosed in the Pricing Disclosure Package and the Final Prospectus, and to the best of such counsel’s knowledge, there is no franchise, contract or other document of a character required to be described in the Registration Statement, the Pricing Disclosure Package or the Final Prospectus, or to be filed as an exhibit, which is not described or filed as required; and the statements included or incorporated in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus describing any legal proceedings or material contracts or agreements relating to the Company or any of its subsidiaries fairly summarize such matters in all material respects;
(vii) the Registration Statement has become effective under the Act; any required filing of the Basic Prospectus, any Preliminary Final Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) under has been made in the Securities Act not later than manner and within the close time period required by Rule 424(b); any required filing of business on the second business day following the execution and delivery of this Agreement; and any material required to be filed by the Company Issuer Free Writing Prospectus pursuant to Rule 433(d) has been made in the manner and within the time period required by Rule 433; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued, no proceedings for that purpose have been instituted or threatened, and the Registration Statement, the Pricing Disclosure Package and the Final Prospectus and each amendment thereof or supplement thereto made by the Company prior to the date of such opinion as of their respective issue dates (other than the financial statements and other financial information contained or incorporated therein, and that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification of Trustee (Form T-1) under the Trust Indenture Act, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of that Act and the Exchange Act and the respective rules and regulations thereunder; and nothing has come to the attention of such counsel that has caused such counsel to believe that at the Effective Date the Registration Statement contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; that the Pricing Disclosure Package as of the Applicable Time contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading or that the Final Prospectus as of its date and as of the Closing Date included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading except that such counsel does not express any opinion or belief as to (a) the financial statements or schedules or other data of a financial nature included or incorporated therein, (b) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification of Trustee (Form T-1) under the Trust Indenture Act, and (c) regulatory actions of the applicable regulatory authorities that are not otherwise disclosed by such regulatory authorities. In connection with the foregoing, the Underwriters acknowledge and understand that the character of determinations involved in the process of preparing the Registration Statement and the Final Prospectus (including any documents incorporated by reference) are such that such counsel need not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Final Prospectus (including any documents incorporated by reference) except as expressly set forth herein;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities Act by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(x) neither the issuance and sale of the Securities nor consummation of any other of the transactions contemplated herein nor the fulfillment of the terms hereof will: (A) violate any provision of the charter or by-laws of the Company or PNC Bank or (B) constitute a violation or breach of or default under any material provision of any material indenture or other material agreement or instrument known to such counsel and to which the Company or PNC Bank is a party, or (C) violate any judgment, order or decree applicable to the Company or PNC Bank of any court or federal or state regulatory or governmental agency having jurisdiction over the Company or PNC Bank; except in (B), or (C) above, with respect to violations, breaches or defaults that would not have a material adverse effect on the Company and its consolidated subsidiaries taken as a whole, or PNC Bank;
(xi) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, will not be an “investment company” or an entity “controlled” by an “investment company”, as such terms are defined in the Investment Company Act;
(xii) the Securities and the Indenture conform in all material respects to the descriptions thereof in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus; and
(xiii) the statements set forth in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus under the caption “Certain Terms of the Senior Notes”, taken together with the statements set forth in the Basic Prospectus under the caption “Description of Debt Securities of The PNC Financial Services Group, Inc.”, insofar as they purport to describe the provisions of the laws and documents referred to therein, fairly summarize in all material respects the matters described therein; In rendering such opinion, such counsel will opine only as to matters involving the application of the laws of the Commonwealth of Pennsylvania or the United States and may rely (A) as to matters involving the application of laws of any jurisdiction other than the Commonwealth of Pennsylvania or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are reasonably satisfactory to counsel for the Underwriters, except that it will not be required that such counsel obtain an opinion of New York counsel as to matters of New York law in order to render such opinion or that such counsel express an opinion as to matters arising under the laws of any jurisdiction other than the laws of the Commonwealth of Pennsylvania and matters of federal law arising under the laws of the United States of America, and (B) as to matters of fact, to the extent deemed proper, on certificates or representations of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have been filed received an opinion of McGuireWoods LLP, counsel to the Company, dated the Closing Date, substantially to the effect that:
(i) the discussion set forth in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus under the caption “Material U.S. Federal Income Tax Consequences”, in so far as it relates to matters of United States federal income tax laws, subject to the qualifications, exceptions, assumptions and limitations described therein, fairly summarizes in all material respects the matters set forth therein.
(d) The Representatives shall have received from Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Underwriters, an opinion and disclosure letter, dated the Closing Date, with respect to the issuance and sale of the Securities, the Registration Statement, and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board, the President, a Vice Chairman of the Board or any Executive Vice President, Senior Vice President, Vice President or Assistant Vice President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Pricing Disclosure Package, the Final Prospectus, any supplement to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date, with the SEC within same effect as if made on the applicable time periods prescribed Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for such filings that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent consolidated financial statements included or incorporated by Rule 433 under reference in the Securities Act.Registration Statement, the Pricing Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), (i) there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, (ii) the Company and its subsidiaries have not incurred any liability or obligation that is material to the Company and its subsidiaries, taken as a whole, and (iii) the Company has not purchased any of its outstanding capital stock except pursuant to its share repurchase programs and employee benefit plans in the ordinary course of business, and has not declared, paid or otherwise made any dividend or distribution of any kind of its capital stock other
Appears in 5 contracts
Sources: Underwriting Agreement (PNC Financial Services Group, Inc.), Underwriting Agreement (PNC Financial Services Group, Inc.), Underwriting Agreement (PNC Financial Services Group, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date Securities and the Option Shares on any Additional Closing Date, as the case may be, will Optional Securities shall be subject to the accuracy of the representations and warranties on the part of each of the Company Guarantor and the Trust contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional the Option Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Guarantor and the Trust made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance by each of the Guarantor and observance by the Company of all Trust of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, shall have been issued and no proceedings for that purpose shall have been instituted or threatened by the SEC; the Final The Prospectus shall have been filed with the SEC Commission pursuant to Rule 424(b) under the Securities Act not later than within the close of business on applicable time period prescribed for such filing by the second business day following rules and regulations under the execution Act and delivery of this Agreementin accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company Guarantor or the Trust pursuant to Rule 433(d) under the Securities Act Act, shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings by Rule 433 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with.
(b) The Guarantor shall have furnished to the Representative a certificate, dated the Closing Date or the Option Closing Date, as the case may be, of the Guarantor, signed by the principal financial or accounting officer of the Guarantor, to the effect that, to the best of his knowledge after reasonable investigation:
(i) The representations and warranties of the Guarantor in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date or the Option Closing Date, as the case may be, and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be, in all material respects;
(ii) No stop order suspending the effectiveness of the Registration Statement or any part thereof or suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus has been issued and no proceedings for that purpose have been instituted and are pending or have been threatened as of such date;
(iii) Since the date of the most recent financial statements included or incorporated by reference in the Pricing Prospectus, there has been no material adverse change in the financial position, results of operations, cash flows or prospects relating thereto of the Guarantor and its subsidiaries consolidated, except as set forth in or contemplated by the Prospectus; and
(iv) On or after the Applicable Time, (A) no downgrading has occurred in the rating accorded the Guarantor’s unsecured debt securities or preferred stock as described in Section 6(l)(i), and (B) no announcement has been made with respect to any rating accorded the Guarantor’s unsecured debt securities or preferred stock or the Trust Preferred Securities as described in Section 6(l)(ii).
(c) The Trust shall have furnished to the Representative a certificate, dated the Closing Date or the Option Closing Date, as the case may be, of the Trust, signed by an Administrative Trustee of the Trust, to the effect that, to the best of such Trustee’s knowledge after reasonable investigation:
(i) The representations and warranties of the Trust in this Agreement are true and correct in all material respects on and as of the Closing Date or the Option Closing Date, as the case may be, with the same effect as if made on the Closing Date or the Option Closing Date, as the case may be, and the Trust has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be, in all material respects; and
(ii) No stop order suspending the effectiveness of the Registration Statement or any part thereof or suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus has been issued and no proceedings for that purpose have been instituted and are pending or have been threatened as of such date.
(d) The Guarantor shall have furnished to the Underwriters the opinion, dated the Closing Date or the Option Closing Date, as the case may be, of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Esq., Senior Vice President and Deputy General Counsel of the Guarantor, to the effect that:
(i) The Guarantor has been duly incorporated and is validly existing as a corporation under the laws of the State of North Carolina, with corporate power and authority under such laws to own its properties and conduct its business as described in the Prospectus;
(ii) The LoTSSM have been duly authorized, executed, issued and delivered and, assuming authentication by the Indenture Trustee in the manner contemplated in its certificate, constitute valid and legally binding obligations of the Guarantor entitled to the benefits provided by the Indenture; and the LoTSSM and the Indenture conform in all material respects to the descriptions thereof in the Prospectus;
(iii) The Indenture has been duly authorized, executed and delivered by the Guarantor, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding obligation of the Guarantor enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(iv) The Guarantee has been duly authorized, executed and delivered by the Guarantor, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding obligation of the Guarantor enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and the Guarantee conforms in all material respects to the designation thereof in the Prospectus;
(v) The Trust Agreement has been duly authorized, executed and delivered by the Guarantor, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding obligation of the Guarantor enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and the Trust Agreement conforms in all material respects to the designation thereof in the Prospectus;
(vi) The Guarantor has (or, with respect to the Indenture, had) all corporate power and authority necessary to execute and deliver the Guarantor Transaction Agreements, and has all such power and authority to perform its obligations thereunder; this Agreement has been duly authorized, executed and delivered by the Guarantor; the execution, delivery and performance of this Agreement, the Indenture, the LoTSSM, or the Other Guarantor Transaction Agreements by the Guarantor and compliance with the provisions hereof and thereof by the Guarantor will not (or, with respect to the execution and delivery of the Indenture and the Other Guarantor Transaction Agreements, did not) constitute a breach of, or default under, the corporate charter or by-laws of the Guarantor, or any material agreement, indenture or other instrument relating to indebtedness for money borrowed known to such counsel to which the Guarantor is a party, or, to the best of such counsel’s knowledge, any law, order, rule, regulation or decree of any court, governmental agency or authority located in the United States having jurisdiction over the Guarantor or any property of the Guarantor, which breach or default would be reasonably likely to have a material adverse effect on the Guarantor and its subsidiaries taken as a whole; and, to the best of such counsel’s knowledge, no consent, authorization or order of, or filing or registration with, any court or governmental agency is (or, with respect to the execution and delivery of the Indenture, was) required for the execution, delivery and performance of this Agreement, the Indenture, the LoTSSM, or the Other Guarantor Transaction Agreements by the Guarantor, except such as may be required under applicable state securities or “blue sky” laws or as have been duly made or obtained;
(vii) The Securities have been duly authorized by the Guarantor as Depositor on behalf of the Trust, and the Trust Preferred Securities conform in all material respects to the description thereof in the Prospectus; and
(viii) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Guarantor prior to the Closing Date or the Option Closing Date, as the case may be (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), comply as to form in all material respects with the requirements of the Act and the Trust Indenture Act and the rules and regulations thereunder; although such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Prospectus or the Prospectus, except for those referred to in the opinion in paragraphs (ii) and (iv) of this Section 6(d), he has no reason to believe (i) that any part of the Registration Statement or any further amendment thereto made by the Guarantor or the Trust prior to the Closing Date or the Option Closing Date, as the case may be (other than the financial statements and other financial data contained therein, as to which such counsel need express no opinion), when such part or amendment became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) that the Pricing Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading; or (iii) that, as of its date and as of the Closing Date or the Option Closing Date, as the case may be, the Prospectus or any further amendment or supplement thereto made by the Guarantor or the Trust prior to the Closing Date (other than the financial statements and other financial data contained therein, as to which such counsel need express no opinion) contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and such counsel does not know of any amendment to the Registration Statement required to be filed or of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement, the Effective Date Prospectus or the Prospectus that are not filed or incorporated by reference or described as required. Such counsel may rely (i) as to those matters that relate to the Indenture Trustee, the Guarantee Trustee, or the Property Trustee, upon the certificate or certificates of such entity, (ii) as to matters governed by New York law, upon the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, delivered pursuant to Section 6(e), and (iii) as to matters governed by Delaware law, upon the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., delivered pursuant to Section 6(f).
(e) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Guarantor, shall have furnished to the Underwriters an opinion, dated the Closing Date or the Option Closing Date, as the case may be, to the effect that:
(i) The Indenture has been duly authorized, executed and delivered by the Guarantor and duly qualified under the Trust Indenture Act, and, assuming that the Indenture is the valid and legally binding obligation of the Indenture Trustee, the Indenture constitutes a valid and legally binding obligation of the Guarantor enforceable against the Guarantor in accordance with its terms, subject to (1) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (2) general equitable principles (whether considered in a proceeding in equity or at law) and (3) an implied covenant of good faith and fair dealing.
(ii) The LoTSSM have been duly authorized, executed and issued by the Guarantor and, assuming due authentication thereof by the Indenture Trustee and upon payment and delivery in accordance with the Underwriting Agreement, will constitute valid and legally binding obligations of the Guarantor enforceable against the Guarantor in accordance with their terms and entitled to the benefits of the Indenture, subject to (1) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (2) general equitable principles (whether considered in a proceeding in equity or at law) and (3) an implied covenant of good faith and fair dealing.
(iii) The Guarantee has been duly authorized, executed and issued by the Guarantor and duly qualified under the Trust Indenture Act and, assuming due authentication, issuance and delivery of the Trust Preferred Securities underlying such Guarantee thereof by the Property Trustee and upon payment for and delivery of the Trust Preferred Securities in accordance with the Underwriting Agreement, will constitute a valid and legally binding obligation of the Guarantor enforceable against the Guarantor in accordance with its terms and entitled to the benefits of the Indenture, subject to (1) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (2) general equitable principles (whether considered in a proceeding in equity or at law) and (3) an implied covenant of good faith and fair dealing.
(iv) The statements made in the Prospectus under the captions “Description of the Trust Preferred Securities,” “Description of the LoTSSM,” “Description of the Guarantee,” “Relationship among Trust Preferred Securities, LoTSSM and Guarantee” and “Replacement Capital Covenant,” insofar as they purport to constitute summaries of certain terms of documents referred to therein, constitute accurate summaries of the terms of such documents in all material respects.
(v) The statements made in the Prospectus under the heading “Certain United States Federal Income Tax Consequences,” insofar as they purport to constitute summaries of United States federal income tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters described therein in all material respects.
(vi) The Underwriting Agreement has been duly authorized, executed and delivered by the Guarantor.
(vii) No consent, approval, authorization, order, registration or qualification of or with any federal or New York governmental agency or body is required for the issue and sale of the Trust Preferred Securities by the Trust pursuant to the Underwriting Agreement or the issuance of the Guarantee and the LoTSSM by the Guarantor or the compliance by the Guarantor with all of the provisions of
Appears in 3 contracts
Sources: Underwriting Agreement (Wachovia Corp New), Underwriting Agreement (Wachovia Corp New), Underwriting Agreement (Wachovia Corp New)
Conditions to the Obligations of the Underwriters. The obligations obligation of the Underwriters each Underwriter to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Securities under this Agreement shall be subject to the accuracy of the representations and warranties on the part of the Company contained hereinherein as of the date hereof, as of the date hereofof the Time of Sale Prospectus, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date with respect to such Securities (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Datewith respect to such Securities, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent objecting to its use, use shall have been issued and no proceedings for that purpose shall have been instituted or threatened threatened; all requests by the SECCommission for additional information shall have been complied with to the satisfaction of the Underwriters; and the Final Prospectus with respect to such Securities shall have been filed or transmitted for filing with the SEC Commission pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this AgreementAgreement or, if applicable, such other time as may be required by Rule 424(b).
(b) The Company shall have furnished to the Underwriters the opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire, Assistant Vice President and Senior Counsel of the Company, dated the Closing Date, to the effect that:
(i) The Company and each Significant Subsidiary of the Company has been duly incorporated and is a duly existing corporation under the laws of its respective state of incorporation, with corporate power and authority to own its properties and conduct its business as described in the Time of Sale Prospectus and the Prospectus; and neither the Company nor any material such subsidiary is required to be qualified to do business as a foreign corporation in any other jurisdiction in which failure to so qualify would have a Material Adverse Effect;
(A) At the time of filing the Registration Statement, at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), and at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Act, the Company was a “well-known seasoned issuer” as defined in Rule 405 under the Act; and (B) at the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Securities, the Company was not an “ineligible issuer” as defined in Rule 405 under the Act;
(iii) The Securities have been duly authorized, executed, authenticated, issued and delivered;
(iv) The Securities constitute valid and legally binding obligations of the Company entitled to the benefits and security provided by the Indenture; and the Securities conform to the description thereof contained in the Time of Sale Prospectus and the Prospectus;
(v) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement in connection with the issuance or sale of the Securities by the Company, except such as have been obtained and made under the Act and the Trust Indenture Act and such as may be required under state securities laws;
(vi) The issue and sale of the Securities and the compliance by the Company pursuant with all of the provisions of the Securities, this Agreement and the Indenture, and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to Rule 433(dwhich, to the knowledge of such counsel, the Company or any subsidiary is a party or by which the Company or any subsidiary is bound or to which any of the property or assets of the Company or any subsidiary is subject, except for such conflicts, breaches, violations or defaults as would not, individually or in the aggregate, have a Material Adverse Effect, nor will such action result in any violation of the provisions of (i) the articles of incorporation or bylaws or other organizational documents, as applicable, of the Company or any Significant Subsidiary or (ii) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company, any subsidiary or any of its respective properties, except, in the case of (ii) above, for such violations that would not, individually or in the aggregate, have a Material Adverse Effect;
(vii) The descriptions in the Registration Statement, the Time of Sale Prospectus and the Prospectus of legal and governmental proceedings and contracts and other documents and the descriptions of statutes in the section captioned “Regulatory” (or similar caption) in item 1 of the Company’s most recently filed Form 10-K are accurate in all material respects and fairly present the information required to be shown; no legal or governmental proceedings are required to be described in the Time of Sale Prospectus and the Prospectus which are not described as required; and there are no contracts or documents of a character required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which are not described and filed as required; it being understood that such counsel need express no opinion as to the financial statements or other financial data contained in the Registration Statement, the Time of Sale Prospectus or the Prospectus;
(viii) The Indenture and this Agreement have been duly authorized, executed and delivered by the Company; and
(ix) Except as described in the Time of Sale Prospectus and the Prospectus, there is no action, suit or proceeding pending, nor to the best of such counsel’s knowledge is there any action, suit or proceeding threatened, which might reasonably be expected to result in a Material Adverse Effect or which is required to be disclosed in the Registration Statement. In rendering such opinion, such counsel shall also state that although such counsel has not undertaken to determine independently, does not express an opinion as to, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Time of Sale Prospectus or the Prospectus and has made no independent check or verification thereof (except for those referred to in the opinion in subsection (vii) of this Section 5(b)), no facts have come to such counsel’s attention that have caused such counsel to believe that (i) any part of the Registration Statement, when such part became effective, or any further amendment thereto made by the Company prior to the date hereof (other than the financial statements and the financial data and related schedules incorporated by reference or included therein or excluded therefrom and the exhibits to the Registration Statement, including the Form T-1, as to which such counsel expresses no opinion or belief), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, (ii) as of the Applicable Time, the Time of Sale Prospectus (other than the financial statements and financial data and related schedules incorporated by reference or included therein or excluded therefrom, or the exhibits to the Registration Statement, including the Form T-1, as to which such counsel expresses no opinion or belief) contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading or (iii) as of its date and the Closing Date, the Prospectus as then amended or supplemented or as amended or supplemented by any further amendment or supplement thereto made by the Company prior to the date hereof (other than the financial statements and financial data and related schedules incorporated by reference or included therein or excluded therefrom, and the exhibits to the Registration Statement, including the Form T-1, as to which such counsel expresses no opinion or belief) contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In addition, solely for purposes of rendering the opinion referred to in (iii) above, such counsel may rely, as to matters of New York law, on the opinion of Wachtell Lipton ▇▇▇▇▇ & ▇▇▇▇ referred to below.
(c) The Underwriters shall have received an opinion, dated the Closing Date, of Wachtell Lipton ▇▇▇▇▇ & ▇▇▇▇, counsel for the Company, in substantially the form attached hereto as Annex I.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Time of Sale Prospectus, the Prospectus and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as it requests for the purpose of enabling it to pass upon such matters.
(e) The Company shall have furnished to the Underwriters a certificate of the Company, signed by the Chairman of the Board, the Chief Executive Officer, an Executive Vice President or a Senior Vice President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Time of Sale Prospectus, the Prospectus and this Agreement and that to the best of their knowledge after reasonable investigation:
(i) The representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement, as amended, has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since the date of the latest audited financial statements included or incorporated by reference in the Time of Sale Prospectus and the Prospectus, neither the Company nor any of its consolidated subsidiaries has sustained any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, and there has been no material adverse change nor any development involving a prospective material adverse change in the condition (financial or other), earnings, business or properties of the Company and its consolidated subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Time of Sale Prospectus and the Prospectus.
(f) At the time this Agreement is executed and at the Closing Date, Ernst & Young LLP, as independent accountants for the Company, shall have furnished to the Underwriters a letter or letters (which may refer to letters previously delivered to the Underwriters), dated such date, in substantially the form attached hereto as Annex II.
(g) Subsequent to the respective dates as of which information is given in the Registration Statement, the Time of Sale Prospectus and the Prospectus, there shall not have occurred (i) any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus or (ii) any material change or decrease in those items specified in the letter or letters referred to in paragraph (f) of this Section 5 the effect of which, in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities Act as contemplated by the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(h) Prior to the Closing Date, the Company shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
(i) On or after the Applicable Time and subsequent to the execution and delivery of this Agreement, and prior to the Closing Date there shall not have occurred any downgrading, nor shall notice have been filed given of any intended or potential downgrading or placement “under review” with negative implications or with no indication of the SEC within direction of the applicable possible change of the rating accorded any securities of, or guaranteed by, the Company by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 3(a)(62) of the Exchange Act. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time periods prescribed for prior to, the Closing Date, by the Representatives. Notice of such filings cancellation shall be given to the Company in writing or by Rule 433 under the Securities Acttelephone or telegraph confirmed in writing.
Appears in 3 contracts
Sources: Underwriting Agreement (Lincoln National Corp), Underwriting Agreement (Lincoln National Corp), Underwriting Agreement (Lincoln National Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date Securities and the Option Shares on any Additional Closing DateSecurities, as the case may be, will shall be subject to the accuracy of the representations and warranties (in each case, subject to the qualifications, if any, described therein) on the part of the Company and the Operating Partnership contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to Applicable Time, the Closing Date (including the filing and each Date of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing DateDelivery, as the case may beif any, and pursuant to Section 3 hereof, to the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No On the Closing Date, (i) the Registration Statement has become effective and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, Statement shall have been issued and no under the 1933 Act or proceedings for that purpose shall have been instituted therefor initiated or threatened by the SEC; Commission, and any request on the Final part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters, and no notice of objection of the Commission to the use of such form of registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) has been received by the Company, (ii) each preliminary prospectus and the Prospectus shall have been filed with the SEC pursuant to Commission in the manner and within the time period required by Rule 424(b) under without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the Securities Act not later than requirements of Rule 430B), and no order preventing or suspending the close use of business on any preliminary prospectus or the second business day following Prospectus shall have been issued by the execution and delivery Commission or the securities authority of this Agreement; and any jurisdiction, (iii) any material required to be filed by the Company pursuant to Rule 433(d) under of the Securities 1933 Act Regulations shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule 433, and (iv) there shall not have come to the attention of the Representative any facts that would cause the Representative to believe, after consultation with counsel, that the General Disclosure Package or the Prospectus, at the time it was, or was required to be, delivered or made available to purchasers of the Securities, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading.
(b) The Company shall have requested and caused M▇▇▇▇▇▇▇ & F▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representative their opinion, dated the Closing Date (or the applicable Date of Delivery, as the case may be) and addressed to the Representative, to the matters attached as Exhibit A hereto. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware (to the extent limited to Delaware corporate laws) or the federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers and other representatives of the Company and public officials. Such opinion shall also cover any amendments or supplements thereto at the Closing Date (or the applicable Date of Delivery, as the case may be). The Underwriters acknowledge that the law firm of V▇▇▇▇▇▇ LLP, special Maryland counsel to the Company, is satisfactory for the purposes of this Section 6(b). In addition, M▇▇▇▇▇▇▇ & F▇▇▇▇▇▇▇ LLP shall state that, although such counsel has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the General Disclosure Package or the Prospectus, no facts have come to such counsel’s attention that have caused such counsel to believe that (i) the Registration Statement, as of its most recent effective date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or, (ii) the General Disclosure Package, at the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus, or any amendment or supplement thereto, as of their respective issue dates or at the Closing Date or the applicable Date of Delivery, as the case may be, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements, schedules and other financial or accounting data or information included or incorporated by reference therein or excluded therefrom, as to which such counsel need express no statement).
(c) The Representative shall have received the favorable opinion, dated the Closing Date (or the applicable Date of Delivery, as the case may be), of V▇▇▇▇▇▇ LLP, special Maryland counsel of the Company, to the matters attached as Exhibit B hereto.
(d) The Representative shall have received from Sidley Austin llp, counsel for the Underwriters, such opinion or opinions, dated the Closing Date (or the applicable Date of Delivery, as the case may be) and addressed to the Representative, with respect to the issuance and sale of the Securities, the disclosure in the Registration Statement, the General Disclosure Package and the Prospectus and other related matters as the Representative may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. In rendering such opinion, such counsel may rely, as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of responsible officers and other representatives of the Company and public officials. In addition, in rendering such opinion, such counsel may rely on and assume the accuracy of the opinion of V▇▇▇▇▇▇ LLP, special Maryland counsel to the Company, dated as of the Closing Date (or the applicable Date of Delivery, as the case may be), with respect to matters of Maryland law.
(e) The Underwriters shall have received a certificate of the president or an executive vice president of the Company, on behalf of the Company and as sole stockholder of Education Realty OP GP, Inc. (general partner of the Operating Partnership), and of the chief financial officer or chief accounting officer of the Company, on behalf of the Company and as sole stockholder of Education Realty OP GP, Inc. (general partner of the Operating Partnership), dated the Closing Date (or the applicable Date of Delivery, as the case may be), to the effect that the signers of such certificate have carefully examined the Registration Statement, the General Disclosure Package and the Prospectus and any amendments or supplements to the foregoing, as well as this Agreement, and that:
(i) the representations and warranties (in each case, subject to the qualifications, if any, described therein) of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date (or the applicable Date of Delivery, as the case may be) with the same effect as if made on the Closing Date (or such Date of Delivery, as the case may be) and the Company and the Operating Partnership have complied with all the agreements and satisfied all the conditions on their part to be performed or satisfied at or prior to the Closing Date (or such Date of Delivery, as the case may be);
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or, to the Company’s knowledge, are threatened by the Commission, and no notice of objection of the Commission to the use of such form of registration statement or any post-effective amendment thereto pursuant to Rule 433 401(g)(2) has been received by the Company, and no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued by the Commission or the securities authority of any jurisdiction; and
(iii) since the date of the most recent financial statements included or incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse effect on the condition (financial or otherwise), business, earnings, properties, assets or prospects of the Company or the Operating Partnership and the Subsidiaries, taken as a whole, except as set forth in or contemplated in the Registration Statement, the General Disclosure Package and the Prospectus (for the avoidance of doubt, excluding any documents incorporated or deemed to be incorporated by reference therein after the date hereof).
(f) The Representative shall have received a certificate of the chief financial officer of the Company, dated the Closing Date (or the applicable Date of Delivery, as the case may be), in a form reasonably satisfactory to the Representative.
(g) At the date hereof, the Representative shall have received a letter from Deloitte & Touche LLP dated such date, in form and substance reasonably satisfactory to the Representative, together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information relating to the Company contained in the Registration Statement, the General Disclosure Package and the Prospectus.
(h) On the Closing Date (or the applicable Date of Delivery, as the case may be), the Representative shall have received a letter, dated the Closing Date (or such Date of Delivery, as the case may be), of Deloitte & Touche LLP, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (g) of this Section 6, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date (or such Date of Delivery, as the case may be).
(i) Subsequent to the execution of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there shall not have been (i) any change or decrease specified in the letter referred to in Section 6(g) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business, assets, prospects or properties of the Company or the Operating Partnership and the Subsidiaries taken as a whole, except as set forth in or contemplated in the Registration Statement, the General Disclosure Package and the Prospectus, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus, (iii) any downgrading in, or withdrawal of, the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 1933 Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating), (iv) any suspension or material limitation by the Commission of trading in the Common Stock or trading in securities generally on the NYSE or any setting of minimum or maximum prices on such exchange, or maximum ranges of prices have been required, by such exchange or by such system or by order of the Commission, FINRA or any other governmental authority, (v) any banking moratorium declared either by federal or New York State authorities or (vi) any outbreak or significant escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis or any significant change in national or international political, financial or economic condition, the effect of which on financial markets is such as to make it, in the judgment of the Representative, impractical or inadvisable to proceed with the offering or delivery of the Securities Actas contemplated by the General Disclosure Package and the Prospectus.
(j) On or prior to the Closing Date, the Representative shall have received lock-up agreements substantially in the form of Exhibit C hereto (the “Lock-up Agreements”) from each of the executive officers and directors listed on Schedule III hereof.
(k) On the Closing Date, the Securities shall have been approved for listing on the NYSE, subject only to official notice of issuance.
(l) On the Closing Date (or the applicable Date of Delivery, as the case may be), counsel for the Underwriters shall have been furnished with such other documents as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company or the Operating Partnership in connection with the issuance and sale of the Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters.
(m) Prior to the Closing Date (or the applicable Date of Delivery, as the case may be), the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request. Any certificate or document signed by any officer or representative of the Company or the Operating Partnership and delivered to any Underwriter, or to counsel for the Underwriters, shall be deemed a representation and warranty by each of the Company and the Operating Partnership, as to matters set forth therein, to each Underwriter as to the statements made therein. The Representative may in its sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the Closing Date (or the applicable Date of Delivery, as the case may be) or otherwise. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative, this Agreement and all obligations of the Underwriters hereunder may be terminated at, or at any time prior to, the Closing Date or the applicable Date of Delivery, as the case may be, by the Representative, and such termination shall be without liability of any party to any other party except as provided in Section 7 hereof and except that Sections 1 and 8 hereof shall survive any such termination and remain in full force and effect. Notice of such termination shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the offices of Sidley Austin llp, counsel for the Underwriters, at 7▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇
Appears in 2 contracts
Sources: Underwriting Agreement (Education Realty Operating Partnership L P), Underwriting Agreement (Education Realty Operating Partnership L P)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate certificates furnished pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No For the period from and after effectiveness of this Agreement and prior to the Closing Date:
(i) no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under post-effective amendment to the Securities Act that would prevent its useRegistration Statement, shall have been issued be in effect and no proceedings for that such purpose shall have been instituted or threatened by the SEC; Commission, and the Final Prospectus Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf registration statement form (unless the Securities are duly registered in the manner contemplated by Rule 401(g)(2) to the satisfaction of the Representatives prior to the Closing Date);
(ii) the Company shall have been filed the Prospectus with the SEC pursuant to Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430B, and such post-effective amendment shall have become effective (if not later than automatically effective under the close rules of business on the second business day following the execution and delivery of this Agreement; Commission);
(iii) each Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act Act, shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule or, to the extent applicable, under Rule 164(b); and
(iv) the NASD shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(b) The Company shall have furnished to the Representatives the opinion of ▇▇▇▇▇ Mulliss & Wicker, PLLC, counsel for the Company, dated the Closing Date, to the effect of paragraphs (i) and (v) through (xi) below, and the opinion of the General Counsel of the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) through (iv) below:
(i) the Company is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware, has the corporate power and authority to own its properties and conduct its business as described in each Disclosure Package and the Prospectus, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the “Principal Subsidiary Bank”) is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) each of the Company and the Principal Subsidiary Bank is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the Company or the Principal Subsidiary Bank, as the case may be, is required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock of the Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and (except as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except as otherwise set forth in each Disclosure Package and the Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors’ qualifying shares) are owned, directly or indirectly, by Rule 433 the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens or encumbrances;
(iv) such counsel is without knowledge that (1) there is any pending or threatened action, suit or proceeding before or by any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement, each Disclosure Package, or the Prospectus which is omitted or not adequately disclosed therein, or (2) any franchise, contract or other document of a character required to be described in the Registration Statement, a Disclosure Package, or the Prospectus, or to be filed as an exhibit to the Registration Statement, is not so described or filed as required;
(v) the Indenture and the Securities conform in all material respects to the descriptions thereof contained in each Disclosure Package and the Prospectus;
(vi) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid, and binding instrument of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy; and the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy;
(vii) the Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment to the Registration Statement, has been issued, and such counsel is without knowledge that any proceeding for that purpose has been instituted or threatened, or that the Company has received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to the use of the automatic shelf registration statement form; and the Registration Statement, each Disclosure Package and the Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Trust Indenture Act;
(viii) this Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in this Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy;
(ix) no consent, approval, authorization or order of any court or governmental agency or body in the United States is necessary or required on behalf of the Company for the consummation of the transactions contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the blue sky, state securities or insurance or similar laws of the United States in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(x) neither the issuance and sale of any of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach of, or constitute a default under (1) the certificate of incorporation or by-laws of the Company, each as amended to date, (2) the terms of any indenture or other material agreement or instrument known to such counsel and to which the Company or the Principal Subsidiary Bank is a party or bound, or (3) any order, law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Principal Subsidiary Bank; and
(xi) such counsel is without knowledge of any rights to the registration of securities of the Company under the Registration Statement which have not been waived by the holders of such rights or which have not expired by reason of lapse of time following notification of the Company’s intention to file the Registration Statement. In rendering such opinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no view as to portions of the Registration Statement, each Disclosure Package or the Prospectus consisting of financial statements and other financial, accounting and statistical information and it has not independently verified, is not passing upon and assumes no responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, each Disclosure Package, or the Prospectus or any amendment or supplement thereto (other than as stated in (v) above), it has no reason to believe that such remaining portions of the Registration Statement or any amendment thereto as of the time it became effective, as of the Applicable Time or as of the date of such opinion, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that, subject to the foregoing with respect to financial statements and other financial, accounting and statistical information, each Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statement therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, as amended or supplemented, as of its date or as of the date of such opinion contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel also does not pass upon, and does not assume any responsibility for, ascertaining whether or when any of the information contained in each Disclosure Package was conveyed to any purchaser of the Notes In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of North Carolina, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, upon the opinion of counsel to the Underwriters, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriters; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.
(c) The Representatives shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, each Disclosure Package, and the Prospectus and any other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by any Senior Vice President or Treasurer or any other authorized officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, each Disclosure Package, and the Prospectus and this Agreement and they are without knowledge that:
(i) the representations and warranties of the Company in this Agreement are not true and correct with the same force and effect as though expressly made at and as of the Closing Date and the Company has not performed or complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) any stop order suspending the effectiveness of the Registration Statement has been issued or any proceedings for that purpose have been instituted or threatened by the Commission; and
(iii) since the date of the most recent financial statements included in each Disclosure Package and the Prospectus, there has been any material adverse change or any development involving a prospective material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in each Disclosure Package and the Prospectus.
(e) At the time this Agreement is executed, PricewaterhouseCoopers LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated as of the date of this Agreement, in form and substance satisfactory to the Representatives, confirming that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) They are an independent registered public accounting firm with respect to the Company within the meaning of the Securities Act and the applicable rules and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (United States).
(ii) In their opinion, the consolidated financial statements of the Company and its subsidiaries audited by them and included or incorporated by reference in the Registration Statement and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act and the related rules and regulations adopted by the Commission.
(iii) On the basis of procedures (but not an audit in accordance with generally accepted auditing standards) consisting of:
(a) Reading the minutes of the meetings of the stockholders, the board of directors, executive committee and audit committee of the Company and the boards of directors of the Principal Subsidiary Bank as set forth in the minute books through a specified date not more than five business days prior to the date of delivery of such letter;
(b) Performing the procedures specified by the American Institute of Certified Public Accountants for a revie
Appears in 2 contracts
Sources: Underwriting Agreement (Bank of America Corp /De/), Underwriting Agreement (Bank of America Corp /De/)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional [and the Option Closing Date, as the case may be, and ,] to the accuracy of the statements of the Company’s officers Company made in any certificate certificates furnished pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No For the period from and after effectiveness of this Agreement and prior to the Closing Date [and the Option Closing Date, as the case may be]:
(i) no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any post-effective amendment to the Registration Statement, shall be in effect and no proceedings for such purpose shall have been instituted or, to the Company’s knowledge, threatened by the Commission, and the Company shall not have received from the Commission any notice under pursuant to Rule 401(g)(2) under the Securities Act that would prevent its use, objecting to use of the automatic shelf registration statement form (unless the Shares are duly registered in the manner contemplated by Rule 401(g)(2) to the satisfaction of the Representatives prior to the Closing Date);
(ii) the Company shall have been issued filed any Preliminary Prospectus and no proceedings for that purpose shall have been instituted or threatened by the SEC; the Final Prospectus shall have been filed with the SEC pursuant to Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430B, and such post-effective amendment shall have become effective (if not later than automatically effective under the close rules of business on the second business day following Commission);
(iii) [the execution and delivery of this Agreement; and Final Term Sheet, and] any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act Act, shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule or, to the extent applicable, under Rule 164(b);
(iv) all requests by Rule 433 under the Securities ActCommission for additional information shall have been complied with to the reasonable satisfaction of the Representatives;
(v) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements;
(vi) the Shares to be delivered on the Closing Date [or the Option Closing Date, as the case may be,] shall have been approved for listing on the NYSE, subject to official notice of issuance; and
(vii) the lock-up agreements, each substantially in the form of Exhibit A hereto, between the Representatives and the directors and executive officers of the Company relating to sales and certain other dispositions of shares of capital stock of the Company or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date [and the Option Closing Date, as the case may be].
Appears in 2 contracts
Sources: Underwriting Agreement (Raymond James Financial Inc), Underwriting Agreement (Raymond James Financial Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares Notes on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will shall be subject to the accuracy of the representations and warranties on the part of the Company Apollo Parties contained herein, as of herein at the date hereof, as of Execution Time and the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Apollo Parties made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company Apollo Parties of all of its covenants and agreements herein contained their obligations hereunder and to the following additional conditions:
(a) No The Registration Statement has become effective and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement or any notice under Rule 401(g)(2) post-effective amendment thereto has been issued under the Securities Act that would prevent its useAct, shall have no order preventing or suspending the use of any Preliminary Prospectus or the Prospectus has been issued and no proceedings for that purpose shall any of those purposes have been instituted or threatened by are pending or, to the SECIssuer’s knowledge, contemplated; and the Final Prospectus shall Issuer has complied with each request (if any) from the Commission for additional information. The Prospectus, and any supplement thereto, have been filed with in the SEC pursuant to manner and within the time period required by Rule 424(b) under and the Securities Act not later than final term sheet in the close of business on the second business day following the execution form approved by you and delivery of this Agreement; attached as Schedule III hereto, and any other material required to be filed by the Company Issuer pursuant to Rule 433(d) under the Securities Act Act, shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings by Rule 433 433. The Issuer shall have paid the required Commission filing fees relating to the Securities within the time period required by Rule 456(b)(1)(i) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(b) The Issuer shall have requested and caused ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Apollo Parties, to furnish to the Representatives its opinion and disclosure letter, dated the Closing Date and addressed to the Representatives, substantially in the forms attached hereto as Exhibits A-1 and A-2, respectively.
(c) The Issuer shall have requested and caused Walkers (Cayman) LLP, special Cayman Islands legal counsel for each Apollo Party organized under the laws of the Cayman Islands (collectively, the “Apollo Cayman Parties”), to furnish to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, substantially in the form attached hereto as Exhibit B.
(d) The Representatives shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Disclosure Package, the Prospectus (as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the Apollo Parties shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Representatives shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of each Apollo Party or its general partner, on behalf of each of the Apollo Parties to the effect that (x) each of the signers of such certificate has carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto, and this Agreement, (y) the representations and warranties of the Apollo Parties contained in this Agreement are true and correct on and as of the Closing Date and that the Apollo Parties have complied with all of the agreements and satisfied all of the conditions on their part to be performed or satisfied hereunder on or before the Closing Date, and (z) since the date of the most recent financial statements included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there has been no material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise) earnings, business or properties of the Issuer and the 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 amendment or supplement thereto), provided that any executive officer signing and delivering such certificate may rely upon his or her knowledge as to proceedings threatened.
(f) At the Execution Time and at the Closing Date, (i) Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Apollo Parties, letters, dated respectively as of the Execution Time and as of the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of (A) for the periods on or before December 31, 2021, Apollo Asset Management, Inc. (f/k/a Apollo Global Management, Inc.) and its subsidiaries and (B) for the periods subsequent to December 31, 2021, the Issuer and its subsidiaries contained or incorporated by reference in each of the Registration Statement, the Disclosure Package and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off” date no more than three Business Days prior to the Closing Date and (ii) PricewaterhouseCoopers LLP shall have furnished to the Representatives, at the request of the Issuer, letters, dated respectively as of the Execution Time and as of the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements of Athene Holding Ltd. as of and for the year ended December 31, 2021 contained or incorporated by reference in each of the Registration Statement, the Disclosure Package and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off” date no more than three Business Days prior to the Closing Date.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment or supplement thereto), the Disclosure Package (exclusive of any amendment or supplement thereto) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise) earnings, business or properties of the Issuer and the 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 amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Issuer’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) [Reserved.]
(j) Prior to the Closing Date, the Apollo Parties shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Apollo Parties in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the Underwriters, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Apollo Global Management, Inc.), Underwriting Agreement (Apollo Global Management, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate certificates furnished pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No For the period from and after effectiveness of this Agreement and prior to the Closing Date:
(i) no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under post-effective amendment to the Securities Act that would prevent its useRegistration Statement, shall have been issued be in effect and no proceedings for that such purpose shall have been instituted or threatened by the SEC; Commission, and the Final Prospectus Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf registration statement form (unless the Shares are duly registered in the manner contemplated by Rule 401(g)(2) to the satisfaction of the Representatives prior to the Closing Date);
(ii) the Company shall have been filed [the preliminary prospectus and] the Prospectus with the SEC pursuant to Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430B, and such post-effective amendment shall have become effective (if not later than automatically effective under the close rules of business on the second business day following Commission);
(iii) the execution and delivery of this Agreement; Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act Act, shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule or, to the extent applicable, under Rule 164(b); and
(iv) the NASD shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(b) The Company shall have furnished to the Representatives the opinion of ▇▇▇▇▇ Mulliss & Wicker, PLLC, counsel for the Company, dated the Closing Date, to the effect of paragraphs (i) and (iv) through (xii) below, and the opinion of the General Counsel of the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) and (iii) below:
(i) the Company is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware, has the corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and the Prospectus, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the “Principal Subsidiary Bank”) is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) each of the Company and the Principal Subsidiary Bank is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the Company or the Principal Subsidiary Bank, as the case may be, is required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock of the Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and (except as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except as otherwise set forth in the Disclosure Package and the Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors’ qualifying shares) are owned, directly or indirectly, by Rule 433 the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens or encumbrances;
(iv) the Shares conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Prospectus;
(v) if the Shares are to be listed on the [ ] Stock Exchange, authorization therefor has been given, subject to official notice of issuance and evidence of satisfactory distribution, or the Company has filed a preliminary listing application and all required supporting documents with respect to the Shares with the [ ] Stock Exchange and such counsel has received no information stating that the Shares will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution;
(vi) such counsel is without knowledge that (1) there is any pending or threatened action, suit or proceeding before or by any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement, the Disclosure Package, or the Prospectus which is omitted or not adequately disclosed therein, or (2) any franchise, contract or other document of a character required to be described in the Registration Statement, the Disclosure Package, or the Prospectus, or to be filed as an exhibit to the Registration Statement, is not so described or filed as required;
(vii) the Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment to the Registration Statement, has been issued, and such counsel is without knowledge that any proceeding for that purpose has been instituted or threatened, or that the Company has received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to the use of the automatic shelf registration statement form; and the Registration Statement, the Disclosure Package, and the Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act;
(viii) this Agreement and the Pricing Agreement have been duly authorized, executed and delivered by the Company and each constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in this Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy;
(ix) no consent, approval, authorization or order of any court or governmental agency or body in the United States is necessary or required on behalf of the Company for the consummation of the transactions contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the blue sky, state securities or insurance or similar laws of the United States in connection with the purchase and distribution of the Shares by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(x) neither the issuance and sale of the Shares, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach of, or constitute a default under the certificate of incorporation or by-laws of the Company, each as amended to date, or (1) the terms of any indenture or other material agreement or instrument known to such counsel and to which the Company or the Principal Subsidiary Bank is a party or bound, or (2) any order, law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Principal Subsidiary Bank;
(xi) such counsel is without knowledge of any rights to the registration of securities of the Company under the Registration Statement which have not been waived by the holders of such rights or which have not expired by reason of lapse of time following notification of the Company’s intention to file the Registration Statement; and
(xii) the Initial Shares, [and any Option Shares as to which the option granted in Section 2(c) has been exercised] have been duly authorized and, when paid for as contemplated herein, will be duly issued, fully paid and nonassessable. In rendering such opinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no view as to portions of the Registration Statement, the Disclosure Package, or the Prospectus consisting of financial statements and other financial, accounting and statistical information and it has not independently verified, is not passing upon and assumes no responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package, or Prospectus or any amendment or supplement thereto (other than as stated in (iv) above), it has no reason to believe that such remaining portions of the Registration Statement or any amendment thereto as of the time it became effective, as of the Applicable Time or as of the date of such opinion, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that, subject to the foregoing with respect to financial statements and other financial, accounting and statistical information, the Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statement therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, as amended or supplemented, as of its date or as of the date of such opinion contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of North Carolina, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, upon the opinion of counsel to the Underwriters, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriters; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.
(c) The Representatives shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Initial Shares, the Pricing Agreement, the Registration Statement, the Disclosure Package, and the Prospectus and any other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer or a Senior Vice President, and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, and the Prospectus and this Agreement and they are without knowledge that:
(i) the representations and warranties of the Company in this Agreement are not true and correct with the same force and effect as though expressly made at and as of the Closing Date and the Company has not performed or complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) any stop order suspending the effectiveness of the Registration Statement has been issued or any proceedings for that purpose have been instituted or threatened by the Commission; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus, there has been any material adverse change or any development involving a prospective material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(e) At the time this Agreement is executed, PricewaterhouseCoopers LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated as of the date of this Agreement, in form and substance satisfactory to the Representatives, confirming that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) They are an independent registered public accounting firm with respect to the Company within the meaning of the Securities Act and the applicable rules and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (United States).
(ii) In their opinion, the consolidated financial statements of the Company and its subsidiaries audited by them and included or incorporated by reference in the Registration Statement [, the preliminary prospectus] and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act and the related rules and regulations adopted by the Commission.
(iii) On the basis of procedures (but not an audit in accordance with generally accepted auditing standards) consisting of:
(a) Reading the minutes of the meetings of the stockholders, the board of directors, executive committee and audit committee of the Company and the boards of directors of the Principal Subsidiary Bank as set forth in the minute books through a specified date not more than five business days prior to the date of delivery of such letter;
(b) Performing the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Accounting Standards No. 100, Interim Financial Information, on the unaudited condensed consolidated interim financial statements of the Company and its consolidated subsidiaries included or incorporated by reference in the Registration Statement [, the preliminary prospectus] and the Prospectus and reading the unaudited interim financial data, if any, for the period from the date of the latest balance sheet included or incorporated by reference in the Registration Statement [, the preliminary prospectus] and the Prospectus to the date of the latest available interim financial data; and
(c) Making inquiries of certain officials of the Company who have responsibility for financial and accounting matters regarding the specific items for which representations are requested belo
Appears in 2 contracts
Sources: Underwriting Agreement (BAC Capital Trust XX), Underwriting Agreement (BAC Capital Trust XX)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and Carnival plc contained herein, herein (or the accuracy in all material respects with respect to any representation or warranty on the part of the Company and Carnival plc which has no materiality qualification) as of the date hereof, as of Execution Time and the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company and Carnival plc made in any certificate furnished certificates pursuant to the provisions hereof, to the performance by each of this the Company and Carnival plc of its obligations hereunder, to the due execution and delivery of the Indenture and the Agency Agreement, to the performance and observance by absence of any event or condition which would give you the Company of all of its covenants and agreements herein contained right to terminate this Agreement and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration StatementThe Final Prospectus, as amended from time to timeand any supplement thereto, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, shall have been issued and no proceedings for that purpose shall have been instituted or threatened by the SEC; the Final Prospectus shall have been filed with in the SEC pursuant to manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) under the Securities Act not later than the close of business on the second business day following the execution and delivery of this Agreement; hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act Act, shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings by Rule 433 433; the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) objecting to use of the automatic shelf registration statement form and at the Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission.
(b) At the Closing Date, the Company shall have furnished to you the opinion of the General Counsel to the Company and Carnival plc, or an Associate or Deputy General Counsel to the Company and Carnival plc that practices in the area of corporate and securities law, dated the Closing Date, substantially in the form of Exhibit A hereto.
(c) At the Closing Date, the Company shall have furnished to you the opinion and negative assurance letter of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Company and Carnival plc, each dated the Closing Date, substantially in the form of Exhibit B and C hereto, respectively, the opinion of Freshfields Bruckhaus ▇▇▇▇▇▇▇▇ LLP, substantially in the form of Exhibit D hereto, and the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, substantially in the form of Exhibit E hereto.
(d) The Underwriters shall have received from Sidley Austin llp, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto), any Issuer Free Writing Prospectus and other related matters as the Representatives may reasonably require, and the Company and Carnival plc shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company and Carnival plc shall have furnished to the Underwriters a certificate of the Company and of Carnival plc, signed by any two officers of the Company and Carnival plc, each of whom is a Vice President, Senior Vice President or Executive Vice President of the Company and Carnival plc, dated the Closing Date, to the effect that the signers of such certificate have examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments to any of the foregoing and this Agreement and that:
(i) the representations and warranties of the Company and Carnival plc in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and each of the Company and Carnival plc has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus, the Company has made all filings with the Commission and announcements, in either case required to be made by the Act or the Exchange Act.
(f) The Underwriters shall have received from PricewaterhouseCoopers LLP, independent registered public accounting firm for the Company and Carnival plc at the Execution Time and at the Closing Date, letters, dated as of the Execution Time and as of the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Representatives, confirming that they are independent auditors with respect to the Company and Carnival plc within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder and containing statements and information of the type ordinarily included in accountant’s “comfort letters” to underwriters, delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin), with respect to the audited, unaudited and pro forma financial statements, as applicable, and certain financial information contained or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment or supplement thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any decrease or increase specified in the letter or letters referred to in paragraph (f) of this Section 5 or (ii) any change, or any development involving a prospective change, in or affecting the business (including the results of operations or management) or properties of the Company or Carnival plc and their respective subsidiaries taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(h) Except as disclosed in the Disclosure Package, subsequent to the Execution Time, (i) there shall not have been any downgrade in the credit ratings of any of the Company’s or Carnival plc’s debt securities by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”) or Standard & Poor’s Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), and (ii) neither the Company nor Carnival plc shall have been placed under special surveillance, with negative implications, by Moody’s or S&P.
(i) Prior to the Closing Date, the Company and Carnival plc shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives and such cancellation shall be without liability of any party to any other party, except to the extent provided in Sections 4 and 6. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
Appears in 2 contracts
Sources: Underwriting Agreement (Carnival PLC), Underwriting Agreement (Carnival PLC)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date Units described in Sections 2(a) and the Option Shares on any Additional Closing Date, as the case may be, will 2(b) hereof shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereofExecution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date and (including in the filing case of any document incorporated by reference therein) and as of Units delivered after the Closing Date or any Additional Closing Date, as the case may beany settlement date pursuant to Section 3(b) hereof), and to (ii) the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates delivered pursuant to the provisions of this Agreementhereof, to (iii) the performance and observance by the Company of all of its covenants obligations hereunder, and agreements herein contained and to (iv) the following additional conditions:
(a) No The Registration Statement shall have become effective (or, if a post- effective amendment is required to be filed pursuant to Rule 430A under the Act, such post-effective amendment shall become effective) not later than 5:00 p.m. Eastern Standard Time, on the execution date hereof or at such later date and time as the Representative may approve in writing and, at the Closing Date (and any settlement date pursuant to Section 3(b) hereof), no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, qualification in any jurisdiction shall have been issued and no proceedings for that purpose shall have been instituted or initiated or, to the best knowledge of the Company, threatened by the SEC; the Final Prospectus Commission.
(b) The Company shall have been filed with furnished to the SEC Representative the opinion of ▇▇▇▇, Dill, Carr, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel for the Company, addressed to the Underwriters and dated the Closing Date (and any settlement date pursuant to Section 3(b) hereof), or other evidence satisfactory to the Representative to the effect that: (i) The Registration Statement has become effective under the Act; any required filing of the Prospectus or any supplements thereto pursuant to Rule 424(b) under has been made in the Securities Act not later than manner and within the close time period required by Rule 424(b); to the best knowledge of business on such counsel, no stop order suspending the second business day following effectiveness of the execution Registration Statement or any qualification in any jurisdiction has been issued and delivery of this Agreementno proceedings for that purpose have been instituted or threatened; any request from the Commission for additional information has been complied with; the Registration Statement and the Prospectus (and any supplements thereto) comply as to form in all material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed respects with the SEC within applicable requirements of the applicable time periods prescribed for Act and the rules and regulations thereunder (except that such filings by Rule 433 under counsel need express no opinion with respect to the Securities ActFinancial Statements and schedules included in the Registration Statement and Prospectus).
Appears in 2 contracts
Sources: Underwriting Agreement (Starlight Entertainment Inc), Underwriting Agreement (Starlight Entertainment Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of Execution Time and the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No If filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(a) hereof, any other material required to be filed by the Company pursuant to Rule 433(d) shall have been filed in the manner and within the time period required by Rule 433 and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened threatened.
(b) The Company shall have furnished to the Representatives the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., Managing Chief Counsel and Corporate Secretary of the Company, dated the Closing Date (which opinion may be relied upon by Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Underwriters, as to matters of Pennsylvania law), to the effect that:
(i) the Company is a corporation duly incorporated and is presently subsisting as a corporation under the laws of the Commonwealth of Pennsylvania with all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, except for such power and authority the absence of which would not have a material adverse effect on the Company and its consolidated subsidiaries taken as a whole or materially and adversely affect its ability to perform its obligations under this Agreement, the Indenture and the Securities, and the Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended;
(ii) PNC Bank is validly organized and existing as a national banking association in good standing under the laws of the United States, with all requisite power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, except for such power and authority the absence of which would not have a material adverse effect on PNC Bank;
(iii) all the outstanding shares of capital stock of PNC Bank have been duly and validly authorized and issued and (except as provided in 12 U.S.C. § 55) are fully paid and nonassessable, and all outstanding shares of capital stock of PNC Bank are owned by the SEC; Company either directly or through wholly owned subsidiaries of the Company free and clear of any perfected security interest and, to the knowledge of such counsel after due inquiry, any other security interests, claims, liens or encumbrances;
(iv) the Company’s authorized equity capitalization, if set forth in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, is as set forth in the Final Prospectus shall and, if the Securities are to be listed on any stock exchange, authorization therefor has been given, subject to official notice of issuance and evidence of satisfactory distribution, or the Company has filed a preliminary listing application and all required supporting documents with respect to the Securities with such stock exchange and nothing has caused such counsel to believe that the Securities will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution and the satisfaction of other requirements which counsel reasonably believes will be satisfied in due course;
(v) the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, receivership, readjustment of debt, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally or general equitable principles (whether considered in a proceeding in equity or at law); and the Securities have been filed duly authorized and, when executed and authenticated in accordance with the SEC provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture, and enforceable against the Company in accordance with their terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, receivership, readjustment of debt, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally or general equitable principles (whether considered in a proceeding in equity or at law);
(vi) to the best knowledge of such counsel, there are no actions, suits, proceedings or investigations pending or threatened against the Company or PNC Bank in any court or before or by an arbitrator or governmental authority, of a character required to be disclosed in the Registration Statement which are not disclosed in the Pricing Disclosure Package and the Final Prospectus, and to the best of such counsel’s knowledge, there is no franchise, contract or other document of a character required to be described in the Registration Statement, the Pricing Disclosure Package or the Final Prospectus, or to be filed as an exhibit, which is not described or filed as required; and the statements included or incorporated in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus describing any legal proceedings or material contracts or agreements relating to the Company or any of its subsidiaries fairly summarize such matters in all material respects;
(vii) the Registration Statement has become effective under the Act; any required filing of the Basic Prospectus, any Preliminary Final Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) under has been made in the Securities Act not later than manner and within the close time period required by Rule 424(b); any required filing of business on the second business day following the execution and delivery of this Agreement; and any material required to be filed by the Company Issuer Free Writing Prospectus pursuant to Rule 433(d) has been made in the manner and within the time period required by Rule 433; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued, no proceedings for that purpose have been instituted or threatened, and the Registration Statement, the Pricing Disclosure Package and the Final Prospectus and each amendment thereof or supplement thereto made by the Company prior to the date of such opinion as of their respective issue dates (other than the financial statements and other financial information contained or incorporated therein, and that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification of Trustee (Form T-1) under the Trust Indenture Act, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of that Act and the Exchange Act and the respective rules and regulations thereunder; and nothing has come to the attention of such counsel that has caused such counsel to believe that at the Effective Date the Registration Statement contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; that the Pricing Disclosure Package as of the Applicable Time contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading or that the Final Prospectus as of its date and as of the Closing Date included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading except that such counsel does not express any opinion or belief as to (a) the financial statements or schedules or other data of a financial nature included or incorporated therein, (b) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification of Trustee (Form T-1) under the Trust Indenture Act, and (c) regulatory actions of the applicable regulatory authorities that are not otherwise disclosed by such regulatory authorities. In connection with the foregoing, the Underwriters acknowledge and understand that the character of determinations involved in the process of preparing the Registration Statement and the Final Prospectus (including any documents incorporated by reference) are such that such counsel need not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Final Prospectus (including any documents incorporated by reference) except as expressly set forth herein;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities Act by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(x) neither the issuance and sale of the Securities nor consummation of any other of the transactions contemplated herein nor the fulfillment of the terms hereof will: (A) violate any provision of the charter or by-laws of the Company or PNC Bank or (B) constitute a violation or breach of or default under any material provision of any material indenture or other material agreement or instrument known to such counsel and to which the Company or PNC Bank is a party, or (C) violate any judgment, order or decree applicable to the Company or PNC Bank of any court or federal or state regulatory or governmental agency having jurisdiction over the Company or PNC Bank; except in (B), or (C) above, with respect to violations, breaches or defaults that would not have a material adverse effect on the Company and its consolidated subsidiaries taken as a whole, or PNC Bank;
(xi) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, will not be an “investment company” or an entity “controlled” by an “investment company”, as such terms are defined in the Investment Company Act;
(xii) the Securities and the Indenture conform in all material respects to the descriptions thereof in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus; and
(xiii) the statements set forth in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus under the caption “Certain Terms of the Senior Notes”, taken together with the statements set forth in the Basic Prospectus under the caption “Description of Debt Securities of The PNC Financial Services Group, Inc.”, insofar as they purport to describe the provisions of the laws and documents referred to therein, fairly summarize in all material respects the matters described therein; In rendering such opinion, such counsel will opine only as to matters involving the application of the laws of the Commonwealth of Pennsylvania or the United States and may rely (A) as to matters involving the application of laws of any jurisdiction other than the Commonwealth of Pennsylvania or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are reasonably satisfactory to counsel for the Underwriters, except that it will not be required that such counsel obtain an opinion of New York counsel as to matters of New York law in order to render such opinion or that such counsel express an opinion as to matters arising under the laws of any jurisdiction other than the laws of the Commonwealth of Pennsylvania and matters of federal law arising under the laws of the United States of America, and (B) as to matters of fact, to the extent deemed proper, on certificates or representations of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have been filed received an opinion of McGuireWoods LLP, counsel to the Company, dated the Closing Date, substantially to the effect that:
(i) the discussion set forth in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus under the caption “Certain U.S. Federal Income Tax Consequences”, in so far as it relates to matters of United States federal income tax laws, subject to the qualifications, exceptions, assumptions and limitations described therein, fairly summarizes in all material respects the matters set forth therein.
(d) The Representatives shall have received from Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Underwriters, an opinion and disclosure letter, dated the Closing Date, with respect to the issuance and sale of the Securities, the Registration Statement, and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board, the President, a Vice Chairman of the Board or any Executive Vice President, Senior Vice President, Vice President or Assistant Vice President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Pricing Disclosure Package, the Final Prospectus, any supplement to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date, with the SEC within same effect as if made on the applicable time periods prescribed Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for such filings that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent consolidated financial statements included or incorporated by Rule 433 under reference in the Securities Act.Registration Statement, the Pricing Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), (i) there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, (ii) the Company and its subsidiaries have not incurred any liability or obligation that is material to the Company and its subsidiaries, taken as a whole, and (iii) the Company has not purchased any of its outstanding capital stock except pursuant to its employee benefit plans in the ordinary course of business, and has not declared, paid or otherwise made any dividend or distribution of any kind of its capital stock other than ordinary and customary
Appears in 2 contracts
Sources: Underwriting Agreement (PNC Financial Services Group, Inc.), Underwriting Agreement (PNC Financial Services Group, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will be subject to the accuracy of the representations and warranties on the part of the Company contained herein, as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to the provisions of this Agreement, to the performance and observance by the Company of all of its covenants and agreements herein contained and to the following additional conditions:
(a) No stop order suspending the effectiveness If filing of the Registration Statement, as amended from time to timePreliminary Prospectus, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its usesupplement thereto, shall have been issued and no proceedings for that purpose shall have been instituted or threatened by the SEC; the Final Prospectus shall have been filed with the SEC is required pursuant to Rule 424(b) under ), the Securities Act not later than Preliminary Prospectus, and any such supplement, will be filed in the close of business on manner and within the second business day following the execution and delivery of this Agreementtime period required by Rule 424(b); and any material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the SEC within the applicable time periods prescribed for such filings by Rule 433 under 433; and no stop order suspending the Securities Acteffectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened. As used in this Agreement, “Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City.
Appears in 2 contracts
Sources: Underwriting Agreement (Wells Fargo Real Estate Investment Corp.), Underwriting Agreement (Wells Fargo Real Estate Investment Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Issuers contained herein, herein as of the date hereof, as of Execution Time and the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Issuers made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company Issuers of all of its covenants and agreements herein contained their obligations hereunder and to the following additional conditions:
(a) No The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement or any notice under Rule 401(g)(2) under the Securities Act that would prevent objecting to its use, use shall have been issued and no proceedings for that purpose shall have been instituted or threatened threatened.
(b) The Company shall have furnished to the Representative the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇, Senior Vice President and General Counsel of the Company, dated the Closing Date and addressed to the Representative, to the effect that:
(i) each of the Company and its subsidiaries has been duly organized and is validly existing and is in good standing under the laws of the jurisdiction in which it is chartered or organized with full power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except in each case as would not, singly or in the aggregate, have a Material Adverse Effect;
(ii) each Issuer has the power and authority to execute and deliver this Agreement, the Indenture and the Securities and to perform its obligations thereunder;
(iii) all the outstanding shares of capital stock of each Significant Subsidiary that is a corporation have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Disclosure Package and the Final Prospectus, all outstanding shares of capital stock of the Significant Subsidiaries (other than Allegiant Insurance Company, Inc., a Risk Retention Group) are owned by the SECCompany either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iv) the Company’s authorized equity capitalization is as set forth in the Disclosure Package and the Final Prospectus; and the Securities being sold hereunder by the Company are duly listed and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution on the NYSE;
(v) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in any Preliminary Prospectus and the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or the Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required;
(vi) neither the execution and delivery of this Agreement, the Indenture, the issue and sale of the Securities nor the consummation of any other of the transactions contemplated by this Agreement nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of the Guarantors pursuant to, (x) the charter or by-laws of the Company or any of the Guarantors, (y) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or the Guarantors is a party or bound or to which its or their property is subject, or (z) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Guarantors of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Guarantors or any of its or their properties, except, in the case of clause (y) or (z), as would not, singly or in the aggregate, have a Material Adverse Effect;
(vii) no holders of securities of the Company have rights to the registration of such securities under the Registration Statement; and
(viii) neither the Company nor any Guarantor is and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Final Prospectus, will be an “investment company” as defined in the Investment Company Act of 1940, as amended. In rendering such opinion, such counsel may assume as to matters involving the application of laws of any jurisdiction other than the State of Colorado and the General Corporation Law of the State of Delaware (collectively, the “Subject States’ Laws”) and the Federal laws of the United States, to the extent they deem proper and specified in such opinion, that insofar as the opinions expressed relate to matters governed by state law other than the Subject States’ Laws, the relevant laws of such other states, and their application to such matters, are and would be the same as the laws which would be applicable to such matters if such agreement were governed by and construed and enforced in accordance with the laws (other than the law governing conflict of law matters) of the State of Colorado. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) ▇▇▇▇▇ ▇▇▇▇ LLP, counsel for the Issuers, shall have been filed with furnished to the SEC Representative an opinion, dated the Closing Date and addressed to the Representative, to the effect that:
(i) the Registration Statement has become effective under the Act; all required filings pursuant to Rule 424(b) under the Securities Act not later have been made in the manner and within the time period required by such Rule; to the knowledge of such counsel, (i) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued by the Commission, and (ii) no proceedings for that purpose have been instituted or threatened by the Commission; and the Registration Statement as of the time it became effective and the Final Prospectus as of its date (other than the close financial statements, the related notes and schedules and other financial information and statistical data, including, without limitation, all pro forma financial data, contained or incorporated by reference therein or omitted therefrom, as to which such counsel express no opinion) comply as to form in all material respects with the applicable requirements of business the Act, the Exchange Act and the Trust Indenture Act and the applicable respective rules thereunder;
(ii) the statements included in the Preliminary Prospectus and the Final Prospectus under the heading “Certain United Stated Federal Income Tax Considerations” fairly summarize the matters therein described in all material respects;
(iii) the statements included or incorporated by reference in the Preliminary Prospectus and the Final Prospectus under the headings “Description of Debt Securities” and “Description of Notes” constitute accurate summaries of the terms of the Indenture, the Notes and the Guarantees in all material respects;
(iv) the Indenture has been duly authorized by the requisite corporate or limited partnership action, as the case may be, on the second business day following part of the Company and the Guarantors, has been duly executed and delivered by the Company and the Guarantors, and has been duly qualified under the Trust Indenture Act; the Indenture constitutes a legal, valid and binding obligation of the Issuers, enforceable against the Issuers in accordance with its terms;
(v) the Notes have been duly authorized by the requisite corporate action on the part of the Company, and have been duly executed by the Company; the Notes, when authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, and will be entitled to the benefits of the Indenture;
(vi) the Guarantees have been duly authorized by the requisite corporate or limited partnership action, as the case may be, on the part of the Guarantors and have been duly executed by the Guarantors; when the Notes are authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, each Guarantee will constitute the legal, valid and binding obligation of the Guarantors, enforceable against such Guarantor in accordance with its terms;
(vii) this Agreement has been duly authorized by all requisite corporate or limited partnership action, as the case may be, on the part of the Company and the Guarantors and has been duly executed and delivered by the Company and the Guarantors; and
(viii) no consent, approval, authorization, filing with or order of (i) any State of Delaware court or governmental agency or body, in each case solely under the General Corporation Law of the State of Delaware, or (ii) any State of New York, State of Colorado or United States federal court or governmental agency or body is required for the due execution and delivery of this Agreement; and any material required to be filed by the Company or the Guarantors of, and the performance by the Company and the Guarantors of the acts required by, the Transaction Documents, except such as have been obtained under the Act, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement, the Disclosure Package and the Final Prospectus. In addition, such counsel shall also state that it has participated in conferences with officers and other representatives of the Company and the Guarantors (as you and your counsel have done); that at such conferences it has made inquiries of such officers and representatives and discussed the contents of the Registration Statement, the Disclosure Package and the Final Prospectus; and that it is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Final Prospectus, except as expressly set forth in paragraphs (ii) and (iii) above. However, subject to the foregoing, such counsel shall state that no facts have come to its attention that have caused it to believe (i) that the Registration Statement, as of its Effective Date, contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, (ii) that the Disclosure Package, at the Execution Time, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) that the Final Prospectus, as of its date or on the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that, in each case, such counsel may state that it expresses no view as to the financial statements, the related notes and schedules and other financial information and statistical data, including, without limitation, all pro forma financial data, contained or incorporated by reference in the Registration Statement, the Disclosure Package or the Final Prospectus. In rendering such opinion, such counsel may limit its opinion to (i) the laws of the State of New York and the federal laws of the United States of America, (ii) with respect to its opinions in paragraphs (iv), (v), (vi), (vii) and (viii) with respect to the Company and the Guarantors organized in the State of Delaware, the General Corporation Law of the State of Delaware, (iii) with respect to its opinions in paragraphs (iv), (vi), (vii) and (viii) with respect to the Guarantors organized in the State of Colorado, the laws of the State of Colorado, (iv) with respect to its opinions in paragraphs (iv), (vi) and (vii) with respect to the Guarantor organized in the State of Maryland, the General Corporation Law of the State of Maryland, and (v) with respect to its opinions in paragraphs (iv), (vi) and (vii) with respect to the Guarantor organized in the State of Virginia, the Stock Corporation Act of the Commonwealth of Virginia. In rendering such opinion, such counsel may rely (A) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials and (B) for purposes of the opinions in paragraphs (iv), (v), (vi) and (vii), on paragraphs (i) and (vii) in the opinion given pursuant to Rule 433(dSection 6(b). References to the Final Prospectus in this paragraph (c) under shall also include any supplements thereto at the Securities Act Closing Date.
(d) The Representative shall have been filed received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative a certificate of the Company, signed by the principal financial or accounting officer of the Company and an executive vice president, vice president, manager or officer of the general partner of each of the Guarantors, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show, if any, used in connection with the SEC offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Issuers in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect.
(f) The Company shall have requested and caused Ernst & Young LLP to have furnished to the Representative, at the Execution Time and at the Closing Date, “comfort letters,” in form and substance satisfactory to the Representative, confirming that they are an independent registered public accounting firm within the applicable time periods prescribed for such filings by Rule 433 under meaning of the Securities Act.Act and the Exchange Act and the
Appears in 2 contracts
Sources: Underwriting Agreement (MDC Holdings Inc), Underwriting Agreement (MDC Holdings Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of Execution Time and the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No The Final Prospectus, and any supplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement or any notice under Rule 401(g)(2) under the Securities Act that would prevent objecting to its use, use shall have been issued and no proceedings for that purpose shall have been instituted or threatened threatened.
(b) The Company shall have requested and caused S▇▇▇▇▇▇ & L▇▇ P.C., counsel for the Company, to have furnished to the Representative its opinion, dated the Closing Date and addressed to the Representative, to the effect that:
(i) The Company is a corporation duly incorporated under and validly existing and in good standing under the laws of the Commonwealth of Pennsylvania, duly registered as a savings and loan holding company under the Home Owners’ Loan Act, as amended, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package and the Final Prospectus, to enter into and perform its obligations under each of the Transaction Agreements, and to issue, sell and deliver the Securities and perform its obligations thereunder.
(ii) The Bank is a savings bank chartered under the laws of the United States and has full power and authority to conduct its business as such. The Bank is an insured depositary institution under the provisions of the Federal Deposit Insurance Act. The deposit accounts at the Bank are insured by the SECFDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and no proceedings for the termination or revocation of such insurance are pending or, to the knowledge of such counsel, threatened.
(iii) Each of the Company and the Bank is duly authorized to transact business and is in good standing under the laws of each jurisdiction in which it owns or leases property of a nature, or transacts business of a type, that would make such authorization necessary, except to the extent that the failure to be so authorized or be in good standing would not individually or in the aggregate, have a Material Adverse Effect.
(iv) All the outstanding shares of capital stock of each “significant subsidiary” (as such term is defined in Rule 405 under the Securities Act) of the Company have been duly and validly authorized and issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Final Prospectus, are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interest, claim, lien or encumbrance.
(v) The Company’s authorized equity capitalization is as set forth in the Disclosure Package and the Final Prospectus; and the outstanding shares of capital stock of the Company have been duly authorized and validly issued by the Company and are fully paid and non-assessable and conform in all material respects to the descriptions thereof in the Disclosure Package and the Final Prospectus; and none of such shares of capital stock was issued in violation of preemptive or other similar rights of any securityholder of the Company.
(vi) The Securities have been duly and validly authorized and, when duly issued, executed, authenticated and delivered by the Company in the manner provided for in the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, the Securities will constitute valid and legally binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with their terms, (subject to applicable insolvency, reorganization, moratorium or other similar laws affecting enforcement of creditors’ rights generally and general equity principles (regardless of whether considered in a proceeding in equity or at law)); all corporate action required to be taken for the authorization, issue and sale of the Securities has been validly and sufficiently taken; and the Securities conform in all material respects to the description thereof contained in the Disclosure Package and the Final Prospectus.
(vii) The Indenture has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (subject to applicable insolvency, reorganization, moratorium or other similar laws affecting enforcement of creditors’ rights generally and general equity principles (regardless of whether considered in a proceeding in equity or at law)). The Indenture has been duly qualified under the Trust Indenture Act and conforms in all material respects to the description thereof in the Disclosure Package and the Final Prospectus.
(viii) This Agreement has been duly authorized, executed and delivered by the Company.
(ix) There is no pending or, to the knowledge of such counsel, threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in any Preliminary Prospectus and the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included or incorporated by reference in any Preliminary Prospectus and the Final Prospectus shall have been filed under the headings “Special Charter and Pennsylvania Corporate Law Provisions,” “Legal Proceedings” and “Entry into a Material Definitive Agreement”(including in each case as incorporated by reference from the Company’s annual report on Form 10-K and current reports on Form 8-K, to the extent so incorporated) insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings.
(x) To the knowledge of such counsel, no default exists in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, loan agreement, note, lease or other agreement or instrument that is described or referred to in the Disclosure Package or the Final Prospectus.
(xi) The statements set forth in the Disclosure Package and the Final Prospectus under the caption “Certain U.S. Federal Income Tax Considerations,” insofar as they purport to constitute summaries of matters of United States federal tax law and regulations or legal conclusions with respect thereto, are accurate and fair summaries of the SEC matters described therein in all material respects.
(xii) The statements set forth in the Disclosure Package and the Final Prospectus under the caption “Description of the Investment Agreement with Banco Santander Central Hispano, S.A.” (including as incorporated by reference from the Company’s annual report on Form 10-K, to the extent so incorporated) insofar as such statements purport to constitute summaries of legal matters, agreements, documents, proceedings or pending transactions discussed therein, are accurate and fair summaries of such matters, agreements, documents, proceedings or transactions.
(xiii) The Registration Statement has become effective under the Act; any required filing of the Base Prospectus, any Preliminary Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) under has been made in the Securities Act not later than manner and within the close of business on the second business day following the execution and delivery of this Agreement; time period required by Rule 424(b), and any material filing of any Free Writing Prospectus required to be filed by the Company pursuant to under Rule 433(d) and final term sheet required to be prepared and filed pursuant to Section 5(b) hereto has been made in the manner and within the time periods required by Rule 433(d); and to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or threatened.
(xiv) The Registration Statement and the Final Prospectus (other than the financial statements and other financial and statistical information contained therein or the contents of any Statement of Eligibility on Form T-1 filed as exhibits thereto, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder.
(xv) Such counsel has no reason to believe that on the Effective Date the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Final Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein or the contents of any Statement of Eligibility on Form T-1 filed as exhibits thereto, as to which such counsel need express no opinion).
(xvi) Such counsel has no reason to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in the Disclosure Package, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading.
(xvii) The Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Final Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended.
(xviii) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained or made under the Securities Act and such as may be required under the blue sky laws of any jurisdiction in the manner contemplated in this Agreement and in any Preliminary Prospectus and the Final Prospectus and such other approvals (specified in such opinion) as have been obtained.
(xix) Neither the execution and delivery of the Transaction Agreements, the issue and sale of the Securities, nor the consummation of any other of the transactions contemplated herein or in the Transaction Agreements, nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or its subsidiaries (including the Bank) pursuant to, (i) the charter or by-laws of the Company or its subsidiaries, (ii) to the knowledge of such counsel, the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or its subsidiaries is a party or bound or to which its or their property is subject, (iii) any statute, law, rule, or regulation applicable to the Company or its subsidiaries or any of its or their properties, or (iv) to the knowledge of such counsel, any judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or its subsidiaries or any of its or their properties.
(xx) No holders of securities of the Company have rights to the registration of such securities under the Registration Statement. In rendering such opinion, such counsel may (A) rely as to matters involving the application of laws of any jurisdiction other than the Commonwealth of Pennsylvania or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters, (B) assume as to matters involving the application of the laws of the State of New York that the application of such laws would be similar to the application of the laws of the Commonwealth of Pennsylvania in respect of such matters, and (C) rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representative shall have been filed received from counsel for the Trustee such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the Indenture, the Securities and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Representative shall have received from C▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & H▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative a certificate of the Company, signed by the President or any Executive Vice President or Senior Vice President of the Company and the principal financial or accounting officer of the Company, without personal liability, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, the Disclosure Package and any supplements or amendments thereto, as well as each electronic roadshow used to offer the Securities, this Agreement and the Transaction Agreements, and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the SEC within same effect as if made on the applicable time periods prescribed Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for such filings that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by Rule 433 under reference in the Securities ActFinal Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect with respect to the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) The Company shall have requested and caused Ernst & Youn
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated therein by reference thereinreference), as of the Time of Sale and as of the Closing Date, to the accuracy in all material respects of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the satisfaction of the following additional conditions in all material respects:
(a) The Registration Statement has become effective and on the Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued under the Act or proceedings therefor initiated or threatened by the Commission, no notice pursuant to Rule 401 (g)(2) of the Regulations shall have been received by the Company and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters. A prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a posteffective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). The Company shall have paid the required Commission filing fees relating to the Securities within the time period required by Rule 456(1)(i) of the Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(b) The Company shall have furnished to the Representatives the opinion of counsel to the Company, dated the Closing Date, with respect to the issuance and sale of the Notes, the Indenture, the Registration Statement, the Prospectus and other related matters as the Representatives may reasonably require.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, this Agreement, the Indenture, the Registration Statement, the Time of Sale Prospectus, the Prospectus and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board, the President or any Vice President and either the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Time of Sale Prospectus, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of their knowledge:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or any Additional satisfied at or prior to the Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to the provisions of this Agreement, to the performance and observance by the Company of all of its covenants and agreements herein contained and to the following additional conditions:;
(aii) No no stop order suspending the effectiveness of the Registration Statement, as amended from time to timeamended, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, shall have has been issued and no proceedings for that purpose shall have been instituted or threatened by or, to their knowledge, threatened; and the SEC; Company has not received from the Final Prospectus shall have been filed with the SEC Commission any notice pursuant to Rule 424(b401(g)(2) under the Act objecting to use of the automatic shelf registration statement form; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no material adverse change, or any development that would reasonably be expected to result in a material adverse change, in the business, results of operations or financial condition of the Company and its subsidiaries, considered as one entity, except as set forth or contemplated in the Registration Statement, the Time of Sale Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) On the date of this Agreement and on the Closing Date, the Company’s registered independent public accountants shall have furnished to the Representatives, at the request of the Company, letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, (1) confirming that they are independent accountants with respect to the Company as required by the Securities Act not later than and the close rules and regulations of business the Commission thereunder and (2) with respect to the accounting, financing, or statistical information (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) contained in the Registration Statement or Prospectus or incorporated by reference therein, and containing statements and information of the type ordinarily included in accountants’ SAS 72 letters, as amended by SAS 6, “Comfort Letters”, to underwriters with respect to the financial statements and certain financial information contained in, or incorporated by reference into, the Registration Statement, and the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the second Closing Date shall use a “cut-off” date no more than three business day following days prior to the execution Closing Date.
(f) Subsequent to the Time of Sale or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Time of Sale Prospectus (exclusive of any amendment thereof or supplement thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving or affecting the business, results of operations or financial condition 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 Time of Sale Prospectus (exclusive of any amendment thereof or supplement thereto) 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 reasonable judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of this Agreement; and any material required to be filed the Securities as contemplated by the Company pursuant Registration Statement (exclusive of any amendment thereof), the Time of Sale Prospectus (exclusive of any amendment thereof or supplement thereto) and the Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Time of Sale, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 433(d436(g) under the Securities Act Act).
(h) Prior to the Closing Date, the Company shall have been filed with furnished to the SEC within Representatives such further information, certificates and documents as the applicable time periods prescribed Representatives may reasonably request for such filings by Rule 433 under the purpose of enabling them to pass upon the issuance and sale of the Securities Actas herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled by the Representatives at, or at any time prior to, the Closing Date. Notice of such cancellation shall be given to the Company in writing or by telephone or telegraph confirmed in writing.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate certificates furnished pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No For the period from and after effectiveness of this Agreement and prior to the Closing Date:
(i) no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under post-effective amendment to the Securities Act that would prevent its useRegistration Statement, shall have been issued be in effect and no proceedings for that such purpose shall have been instituted or threatened by the SEC; Commission, and the Final Prospectus Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to use of the automatic shelf registration statement form (unless the Shares are duly registered in the manner contemplated by Rule 401(g)(2) to the satisfaction of the Representative prior to the Closing Date);
(ii) the Company shall have been filed [the preliminary prospectus and] the Prospectus with the SEC pursuant to Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430B, and such post-effective amendment shall have become effective (if not later than automatically effective under the close rules of business on the second business day following Commission);
(iii) the execution and delivery of this Agreement; Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act Act, shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule or, to the extent applicable, under Rule 164(b); and
(iv) the Financial Industry Regulatory Authority, Inc. (“FINRA”) shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(b) The Company shall have furnished to the Representative the opinion of McGuireWoods LLP, counsel for the Company, dated the Closing Date, to the effect of paragraphs (i) and (v) through (xiv) below, and the opinion of the General Counsel of the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) through (iv) below:
(i) the Company is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware, has the corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and the Prospectus, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the “Principal Subsidiary Bank”) is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) each of the Company and the Principal Subsidiary Bank is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the Company or the Principal Subsidiary Bank, as the case may be, is required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock of the Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and (except as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except as otherwise set forth in the Disclosure Package and the Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors’ qualifying shares) are owned, directly or indirectly, by Rule 433 the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens or encumbrances;
(iv) such counsel is without knowledge that there is (1) any pending or threatened action, suit or proceeding before or by any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement, the Disclosure Package or the Prospectus which is omitted or not adequately disclosed therein, or (2) any franchise, contract or other document of a character required to be described in the Registration Statement, the Disclosure Package or the Prospectus, or to be filed as an exhibit to the Registration Statement, is not so described or filed as required;
(v) the Deposit Agreement, the Depositary Shares and the Preferred Stock conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Prospectus;
(vi) if the Depositary Shares are to be listed on [insert applicable securities exchange], the Company has filed a preliminary listing application and all required supporting documents with respect to the Depositary Shares with t[insert applicable securities exchange], and such counsel has received no information stating that the Depositary Shares will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution;
(vii) the Registration Statement became effective under the Securities Act automatically upon its filing; no stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment to the Registration Statement, has been issued, and such counsel is without knowledge that any proceeding for that purpose has been instituted or threatened, or that the Company has received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form; and the Registration Statement, the Disclosure Package and the Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements under the Securities Act and the Exchange Act;
(viii) this Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by you, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in this Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and similar bank regulatory powers and to the application of principles of public policy;
(ix) no consent, approval, authorization or order of any court or governmental agency or body in the United States is necessary or required on behalf of the Company for the consummation of the transactions contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the blue sky, state securities or insurance or similar laws of the United States in connection with the purchase and distribution of the Depositary Shares by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(x) the shares of Preferred Stock, and any shares of Preferred Stock as to which the over-allotment option granted in Section 2 of this Agreement has been exercised, have been duly authorized and, when paid for as contemplated herein, will be duly issued, fully paid and nonassessable;
(xi) the Depositary Shares, including any Depositary Shares subject to the over-allotment option granted in Section 2 of this Agreement, have been duly and validly authorized for issuance and sale, and, when the Initial Shares and any Option Shares are issued and delivered against payment therefor pursuant to this Agreement, the Depositary Shares will be duly and validly issued and fully paid and non-assessable; and all corporate action required to be taken for the authorization, issue and sale of the Depositary Shares has been validly and sufficiently taken and the Depositary Shares represent legal and valid interests in the Preferred Stock;
(xii) neither the issuance and sale of the Preferred Stock or the Depositary Shares, nor the consummation of any other of the transactions herein contemplated or contemplated by the Deposit Agreement nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach of, or constitute a default under (1) the certificate of incorporation or by-laws of the Company, each as amended to date, (2) the terms of any indenture or other material agreement or instrument known to such counsel and to which the Company or the Principal Subsidiary Bank is a party or bound, or (3) any order, law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Principal Subsidiary Bank;
(xiii) the Deposit Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the other parties thereto, constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and similar bank regulatory powers and to the application of principles of public policy; and
(xiv) such counsel is without knowledge of any rights to the registration of securities of the Company under the Registration Statement which have not been waived by the holders of such rights or which have not expired by reason of lapse of time following notification of the Company’s intention to file the Registration Statement. In rendering such opinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no view as to portions of the Registration Statement, the Disclosure Package, or the Prospectus consisting of financial statements and other financial, accounting and statistical information and it has not independently verified, is not passing upon and assumes no responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package, or the Prospectus or any amendment or supplement thereto (other than as stated in (v) above), it has no reason to believe that such remaining portions of the Registration Statement or any amendment thereto as of the time it became effective, as of the Initial Sale Time or as of the date of such opinion, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that, subject to the foregoing with respect to financial statements and other financial, accounting and statistical information, the Disclosure Package, taken as a whole, as of the Initial Sale Time, contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statement therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, as amended or supplemented, as of its date or as of the date of such opinion contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel also need not pass upon nor assume any responsibility for ascertaining whether or when any of the information contained in each Disclosure Package was conveyed to any purchaser of the Depositary Shares. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of North Carolina, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, upon the opinion of counsel to the Underwriters, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriters; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.
(c) The Representative shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Initial Shares, the Registration Statement, the Disclosure Package and the Prospectus and any other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representative a certificate of the Company, signed by any Senior Vice President or Treasurer or any other authorized officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and this Agreement and they are without knowledge that:
(i) the representations and warranties of the Company in this Agreement are not true and correct with the same force and effect as though expressly made at and as of the Closing Date and the Company has not performed or complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) any stop order suspending the effectiveness of the Registration Statement has been issued or any proceedings for that purpose have been instituted or threatened by the Commission; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus, there has been any material adverse change or any development involving a prospective material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(e) At the time this Agreement is executed, PricewaterhouseCoopers LLP shall have furnished to the Representative a letter or letters (which may refer to letters previously delivered to one or more of the Representative), dated as of the date of this Agreement, in form and substance satisfactory to the Representative, confirming that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) They are an independent registered public accounting firm with respect to the Company within the meaning under the Securities Act and the applicable rules and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (United States).
(ii) In their opinion, the
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Issuers contained herein, herein as of the date hereof, as of Execution Time and the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Issuers made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company Issuers of all of its covenants and agreements herein contained their obligations hereunder and to the following additional conditions:
(a) No The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement or any notice under Rule 401(g)(2) under the Securities Act that would prevent objecting to its use, use shall have been issued and no proceedings for that purpose shall have been instituted or threatened threatened.
(b) The Company shall have furnished to the Representative the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇, Senior Vice President and General Counsel and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Corporate Counsel of the Company, dated the Closing Date and addressed to the Representative, to the effect that:
(i) each of the Company and its subsidiaries has been duly organized and is validly existing and is in good standing under the laws of the jurisdiction in which it is chartered or organized with full power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except in each case as would not, singly or in the aggregate, have a Material Adverse Effect;
(ii) each Issuer has the power and authority to execute and deliver this Agreement, the Indenture and the Securities and to perform its obligations thereunder;
(iii) all the outstanding shares of capital stock of each Significant Subsidiary that is a corporation have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Disclosure Package and the Final Prospectus, all outstanding shares of capital stock of the Significant Subsidiaries are owned by the SECCompany either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iv) the Company’s authorized equity capitalization is as set forth in the Disclosure Package and the Final Prospectus; and the Securities being sold hereunder by the Company are duly listed and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution on the NYSE
(v) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in any Preliminary Prospectus and the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or the Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required;
(vi) neither the execution and delivery of this Agreement, the Indenture, the issue and sale of the Securities nor the consummation of any other of the transactions contemplated by this Agreement nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of the Guarantors pursuant to, (x) the charter or by-laws of the Company or any of the Guarantors, (y) the terms of any agreement that is listed as an exhibit to the Company’s Annual Report on Form 10-K for the year ended December 31, 2016 or any subsequent filing by the Company under the Exchange Act or any other indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or the Guarantors is a party or bound or to which its or their property is subject that is known to us, or (z) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Guarantors of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Guarantors or any of its or their properties, except, in the case of clause (y) or (z), as would not, singly or in the aggregate, have a Material Adverse Effect;
(vii) no holders of securities of the Company have rights to the registration of such securities under the Registration Statement; and
(viii) neither the Company nor any Guarantor is or, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Final Prospectus, will be an “investment company” as defined in the Investment Company Act of 1940, as amended. In rendering such opinion, such counsel may assume as to matters involving the application of laws of any jurisdiction other than the State of Colorado and the General Corporation Law of the State of Delaware (collectively, the “Subject States’ Laws”) and the Federal laws of the United States, to the extent they deem proper and specified in such opinion, that insofar as the opinions expressed relate to matters governed by state law other than the Subject States’ Laws, the relevant laws of such other states, and their application to such matters, are and would be the same as the laws which would be applicable to such matters if such agreement were governed by and construed and enforced in accordance with the laws (other than the law governing conflict of law matters) of the State of Colorado. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLC, counsel for the Issuers, shall have been filed with furnished to the SEC Representative an opinion, dated the Closing Date and addressed to the Representative, to the effect that:
(i) the Registration Statement has become effective under the Act; all required filings pursuant to Rule 424(b) under the Securities Act not later have been made in the manner and within the time period required by such Rule; to the knowledge of such counsel, (i) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued by the Commission, and (ii) no proceedings for that purpose have been instituted or threatened by the Commission; and the Registration Statement as of the time it became effective and the Final Prospectus as of its date (other than the close financial statements, the related notes and schedules and other financial information and statistical data, including, without limitation, all pro forma financial data, contained or incorporated by reference therein or omitted therefrom, as to which such counsel express no opinion) comply as to form in all material respects with the applicable requirements of business on the second business day following Act, the execution Exchange Act and delivery of this Agreement; the Trust Indenture Act and any material required to be filed by the Company pursuant to Rule 433(dapplicable respective rules thereunder;
(ii) the statements included in the Preliminary Prospectus and the Final Prospectus under the Securities Act shall have been filed with heading “Certain United Stated Federal Income Tax Considerations” fairly summarize the SEC within the applicable time periods prescribed for such filings by Rule 433 under the Securities Act.matters therein described in all material respects;
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date Underwritten Securities and the Option Shares on any Additional Closing DateSecurities, as the case may be, will shall be subject to the accuracy of the representations and warranties on the part of the Company Transaction Entities contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to Applicable Time, the Closing Date (including the filing and each Date of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing DateDelivery pursuant to Section 3 hereof, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No On the Closing Date, (i) the Registration Statement has become effective and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, Statement shall have been issued and no under the 1933 Act or proceedings for that purpose shall have been instituted therefor initiated or threatened by the SEC; Commission, and any request on the Final part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters, (ii) each preliminary prospectus and the Prospectus containing the Rule 430B Information shall have been filed with the SEC pursuant to Commission in the manner and within the time period required by Rule 424(b) under without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the Securities Act not later than the close requirements of business on the second business day following the execution and delivery of this Agreement; and Rule 430B), (iii) any material required to be filed by the Company pursuant to Rule 433(d) under of the Securities 1933 Act Regulations shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule 433, (iv) the Company shall have paid the required Commission filing fees relating to the Underwritten Securities within the time period required by Rule 433 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b), and (v) there shall not have come to your attention any facts that would cause you to believe that the Prospectus, at the time it was required to be delivered or made available to purchasers of the Underwritten Securities, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading.
(b) The Company shall have requested and caused L▇▇▇▇ Lord B▇▇▇▇▇▇ & L▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date (or any Date of Delivery, as the case may be) and addressed to the Representatives, to the matters attached as Exhibit A hereto. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the States of Texas, New York or Delaware (to the extent limited to Delaware corporate laws) or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company or the general partner of the Operating Partnership and public officials. References to the Prospectus in this paragraph (b) shall also include any amendments or supplements thereto at the Closing Date (or any Date of Delivery, as the case may be). The Underwriters acknowledge that the law firm of V▇▇▇▇▇▇ LLP is satisfactory for the purposes of this Section 6(b). In addition, L▇▇▇▇ Lord Bissell & Liddell LLP shall state that, although such counsel has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, no facts have come to such counsel’s attention that have caused such counsel to believe that (i) the Registration Statement or any amendment thereto, at the time of filing of the Company’s Annual Report or as of the “new effective date” with respect to the Underwriters of the Securities pursuant to, and within the meaning of, Rule 430B(f)(2) of the 1933 Act Regulations, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the General Disclosure Package, at the Applicable Time, when considered with the information agreed to in writing by the Company and the Underwriters as the information to be conveyed orally by the Underwriters to purchasers of the Securities at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Prospectus, or any amendment or supplement thereto, as of its date or at the Closing Date, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements, related notes and schedules and other financial and statistical information included or incorporated by reference therein or omitted therefrom, as to which such counsel need express no statement). With respect to statements contained in the General Disclosure Package, any statement contained in any of the constituent documents shall be deemed to be modified or superseded to the extent that any information contained in subsequent constituent documents modifies or replaces such statement.
(c) The Representatives shall have received the favorable opinion, dated the Closing Date (or any Date of Delivery, as the case may be), of V▇▇▇▇▇▇ LLP, special Maryland counsel of the Company, to the matters attached as Exhibit B hereto. In rendering such opinion, such counsel may limit its opinions to the laws of the State of Maryland, and matters specifically governed thereby. In rendering such opinion, such counsel may rely, as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of responsible officers of the Company and public officials.
(d) The Representatives shall have received from Sidley Austin llp, counsel for the Underwriters, such opinion or opinions, dated the Closing Date (or any Date of Delivery, as the case may be) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the disclosure in the Registration Statement, the General Disclosure Package and the Prospectus and other related matters as the Representatives may reasonably require, and the Transaction Entities shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. In rendering such opinion, such counsel may rely, as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of responsible officers of the Company or the general partner of the Operating Partnership and public officials. In addition, in rendering such opinion, such counsel may rely on and assume the accuracy of an opinion of V▇▇▇▇▇▇ LLP, special Maryland counsel of the Company, dated as of the Closing Date (or any Date of Delivery, as the case may be), with respect to certain matters of Maryland law.
(e) Each of the Company and the Operating Partnership shall have furnished to the Representatives a certificate, signed by the Chairman of the Board or President and the principal financial or accounting officer of the Company on behalf of the Company and ACCHL, for itself and as general partner of the Operating Partnership, respectively, dated the Closing Date (or any Date of Delivery, as the case may be), to the effect that the signers of such certificate have carefully examined the Registration Statement, the General Disclosure Package and the Prospectus and any amendments or supplements to the foregoing, as well as this Agreement and that:
(i) the representations and warranties of the Transaction Entities in this Agreement are true and correct on and as of the Closing Date (or any Date of Delivery, as the case may be) with the same effect as if made on the Closing Date (or any Date of Delivery, as the case may be) and the Transaction Entities have complied with all the agreements and satisfied all the conditions on their part to be performed or satisfied at or prior to the Closing Date (or any Date of Delivery, as the case may be);
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the General Disclosure Package or the Prospectus (for the avoidance of doubt, exclusive of any amendment or supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), business, earnings, properties, assets or prospects of the Transaction Entities and the 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 General Disclosure Package and the Prospectus (for the avoidance of doubt, exclusive of any amendment or supplement thereto).
(f) At the date hereof, the Representatives shall have received a letter from Ernst & Young LLP dated such date, in form and substance reasonably satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus.
(g) On the Closing Date (or any Date of Delivery, as the case may be), the Representatives shall have received a letter, dated the Closing Date (or such Date of Delivery, as the case may be), of Ernst & Young LLP to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date (or such Date of Delivery, as the case may be).
(h) Subsequent to the date hereof or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business, assets, prospects or properties of the Transaction Entities and the 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 General Disclosure Package and the Prospectus the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus (for the avoidance of doubt, exclusive of any amendment or supplement thereto), (iii) any downgrading in, or withdrawal of, the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 1933 Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating), (iv) any significant change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the sole judgment of the Representatives, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Securities, whether in the primary market or in respect of dealings in the secondary market, (v) any suspension or material limitation by the Commission of trading in the Common Stock or trading in securities generally on the NYSE or any setting of minimum or maximum prices on such Exchange, or maximum ranges of prices have been required, by such Exchange or by such system or by order of the Commission, the FINRA or any other governmental authority, (vi) any banking moratorium declared either by Federal or New York State authorities, (vii) any outbreak or significant escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis or any significant change in national or international political, financial or economic condition, the effect of which on financial markets is such as to make it, in the sole judgment of the Representatives, impractical or inadvisable to proceed with the offering or delivery of the Securities Actas contemplated by the Prospectus (for the avoidance of doubt, exclusive of any amendment or supplement thereto), (viii) the enactment, publication, decree or other promulgation of any statute, regulation, rule or order of any court or other governmental authority which in the Representatives’ opinion materially and adversely affects or may materially and adversely affect the business or operations of the Company or (ix) the taking of any action by any governmental body or agency in respect of its monetary or fiscal affairs which in the Representatives’ reasonable opinion has a material adverse effect on the securities markets in the United States.
(i) On or prior to the Closing Date, the Representatives shall have received lock-up agreements substantially in the forms of Exhibit C and Exhibit D, respectively, hereto (the “Lock-up Agreements”) from each of the executive officers and directors and related parties listed on Schedule III hereof.
(j) On the Closing Date, the Securities shall have been approved for listing on the NYSE, subject only to official notice of issuance.
(k) On the Closing Date (or any Date of Delivery, as the case may be), counsel for the Underwriters shall have been furnished with such other documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Transaction Entities in connection with the issuance and sale of the Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters.
(l) Prior to the Closing Date (or any Date of Delivery, as the case may be), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters. Any certificate or document signed by any officer or representative of the Transaction Entities and delivered to the Underwriters, or to counsel for th
Appears in 1 contract
Sources: Underwriting Agreement (American Campus Communities Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or [and any Additional Option Closing Date], as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate certificates furnished pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No For the period from and after effectiveness of this Agreement and prior to the Closing Date [and any Option Closing Date]:
(i) no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under post-effective amendment to the Securities Act that would prevent its useRegistration Statement, shall have been issued be in effect and no proceedings for that such purpose shall have been instituted or threatened by the SEC; Commission;
(ii) the Final Prospectus Company shall have been filed the preliminary prospectus and the Prospectus with the SEC pursuant to Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430B, and such post-effective amendment shall have become effective (if not later than automatically effective under the close rules of business the Commission);
(iii) the Financial Industry Regulatory Authority, Inc. (“FINRA”) shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements;
(iv) the Shares to be delivered on the second Closing Date[, or Option Closing Date, as the case may be,] shall have been approved for listing on the Nasdaq Global Select Market, subject to official notice of issuance; and
(v) the lock-up agreements, each substantially in the form of Exhibit A hereto, between you and the officers of the Company listed on Exhibit A-1 hereto relating to sales and certain other dispositions of shares of capital stock of the Company or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date[, and any Option Closing Date, as the case may be].
(b) The Company shall have furnished to the Representatives the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date [and any Option Closing Date], in substantially the form attached hereto as Exhibit B, and the opinion of the General Counsel of the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date [and any Option Closing Date], in substantially the form attached hereto as Exhibit C.
(c) The Representatives shall have received from [________], counsel for the Underwriters, such opinion or opinions, dated the Closing Date [and any Option Closing Date], with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, and the Prospectus and any other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer or a Senior Vice President, and the principal financial or accounting officer of the Company, dated the Closing Date [and any Option Closing Date], to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and this Agreement and:
(i) the representations and warranties of the Company in this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date [or such Option Closing Date] and the Company has performed or complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date [or such Option Closing Date];
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or to their knowledge threatened by the Commission; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus, there has been no material adverse change or any development involving a prospective material adverse change in the condition (financial or other), earnings, business day following or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(e) At the time this Agreement is executed, BDO ▇▇▇▇▇▇▇, LLP shall have furnished to the Representatives a letter or letters, dated as of the date of this Agreement, in form and substance satisfactory to the Representatives (i) confirming that they are an independent registered public accounting firm with respect to the Company within the meaning under the Securities Act and the applicable rules and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (United States) and (ii) stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus. In addition, on the Closing Date [and any Option Closing Date], BDO ▇▇▇▇▇▇▇, LLP shall have furnished to the Representatives a letter or letters, dated the Closing Date [or such Option Closing Date], in form and substance satisfactory to the Representatives, confirming as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Disclosure Package and the Prospectus, as the case may be, as of a date not more than three business days prior to the date of the letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “bring-down comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representatives concurrently with the execution of this Agreement pursuant to this paragraph.
(f) Since the respective dates as of which information is given in the Prospectus or the Disclosure Package there has not been, (i) any loss or adverse change, or any development that could reasonably be expected to have a Material Adverse Effect on the Company and its subsidiaries taken as a whole, (ii) any transaction entered into by each of the Company and its subsidiaries, except transactions in the ordinary course of business, (iii) any obligation, direct or contingent, incurred by each of the Company and its subsidiaries that is material to the Company and its subsidiaries taken as a while, except for liabilities or obligations that are reflected in the Prospectus and the Disclosure Package, (iv) any change in the capital stock or outstanding indebtedness of the Company (other than through the exercise of outstanding options and warrants or the conversion of outstanding preferred stock), or (v) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company, the effect of which, in any such case described in clause (i), (ii), (iii), (iv) or (v) of this paragraph (f), is, in the judgment of the Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the Disclosure Package.
(g) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body that would prevent the issuance or sale of the Shares or that would materially and adversely affect the business or operations of the Company; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(h) Subsequent to the execution and delivery of this Agreement; Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, Nasdaq Global Select Market or the NYSE Amex LLC or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the sale or delivery of the Shares on the terms and in the manner contemplated in the Disclosure Package and the Prospectus.
(i) The Company shall have prepared and filed with the Commission a Current Report on Form 8-K with respect to the offering and sale of the Shares, which shall include as an exhibit thereto this Agreement and any material other appropriate exhibit.
(j) Prior to the Closing Date [and any Option Closing Date], the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(k) There shall not have come to the Representatives’ attention any facts that would cause the Representatives to believe that the Disclosure Package, as of the Initial Sale Time, or the Prospectus, at the time it was required to be filed delivered to a purchaser of the Shares, included any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time of such delivery, not misleading. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counsel, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date [and any Option Closing Date] by the Representatives. Notice of such cancellation shall be given to the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the SEC within the applicable time periods prescribed for such filings in writing or by Rule 433 under the Securities Acttelephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date Securities and the Option Shares on any Additional Closing DateSecurities, as the case may be, will shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to Applicable Time, the Closing Date (including the filing and each Date of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing DateDelivery, as the case may beif any, and pursuant to Section 3 hereof, to the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No On the Closing Date, (i) the Registration Statement shall have been filed by the Company with the Commission not earlier than three years prior to the date hereof and became effective upon filing in accordance with Rule 462(e) of the 1933 Act Regulations and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, Statement shall have been issued and no under the 1933 Act or proceedings for that purpose shall have been instituted therefor initiated or threatened by the SEC; Commission, and any request on the Final part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters, and no notice of objection of the Commission to the use of such form of registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the 1933 Act Regulations has been received by the Company, (ii) each preliminary prospectus and the Prospectus shall have been filed with the SEC pursuant to Commission in the manner and within the time period required by Rule 424(b) under without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the Securities Act not later than requirements of Rule 430B), and no order preventing or suspending the close use of business on any preliminary prospectus or the second business day following Prospectus shall have been issued by the execution and delivery Commission or the securities authority of this Agreement; and any jurisdiction, (iii) any material required to be filed by the Company pursuant to Rule 433(d) under of the Securities 1933 Act Regulations shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule 433 and (iv) the Company shall have paid the required Commission filing fees relating to the Firm Securities within the time period required by Rule 433 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(b) The Company shall have requested and caused Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representative their opinion, dated the Closing Date (or the applicable Date of Delivery, as the case may be) and addressed to the Representative, to the matters attached as Exhibit A hereto. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. Such opinion shall also cover any amendments or supplements thereto at the Closing Date (or the applicable Date of Delivery, as the case may be).
(c) The Representative shall have received the favorable opinion, dated the Closing Date (or the applicable Date of Delivery, as the case may be), of ▇▇▇▇. ▇. ▇▇▇▇▇▇▇▇, Esq., Global General Counsel of the Company, to the matters attached as Exhibit B hereto. In rendering such opinion, such counsel may limit its opinions to the Maryland General Corporation Law, and matters specifically governed thereby. In rendering such opinion, such counsel may rely, as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of public officials.
(d) The Representative shall have received the favorable opinion, dated the Closing Date (or the applicable Date of Delivery, as the case may be), of DLA Piper LLP (US), to the matters attached as Exhibit C hereto. In rendering such opinion, such counsel may limit its opinions to the laws of the State of Maryland, and matters specifically governed thereby. In rendering such opinion, such counsel may rely, as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of public officials.
(e) The Representative shall have received from Sidley Austin LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date (or the applicable Date of Delivery, as the case may be) and addressed to the Representative, with respect to the issuance and sale of the Securities, the disclosure in the Registration Statement, the General Disclosure Package and the Prospectus and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. In rendering such opinion, such counsel may rely, as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of responsible officers of the Company and public officials. In addition, in rendering such opinion, such counsel may rely on and assume the accuracy of the opinion of DLA Piper LLP (US), dated as of the Closing Date (or the applicable Date of Delivery, as the case may be), with respect to matters of Maryland law.
(f) The Company shall have furnished to the Representative a certificate, signed by the Chairman of the Board or President and the principal financial or accounting officer of the Company, dated the Closing Date (or the applicable Date of Delivery, as the case may be), to the effect that the signers of such certificate have carefully examined the Registration Statement, the General Disclosure Package and the Prospectus and any amendments or supplements to the foregoing, as well as this Agreement, and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date (or the applicable Date of Delivery, as the case may be) with the same effect as if made on the Closing Date (or such Date of Delivery, as the case may be) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date (or such Date of Delivery, as the case may be);
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or, to the Company’s knowledge, are threatened by the Commission, no notice of objection of the Commission to the use of such form of registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the 1933 Act Regulations has been received by the Company and no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued by the Commission or the securities authority of any jurisdiction; and
(iii) since the date of the most recent financial statements included or incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse effect on the condition (financial or otherwise), business, earnings, properties or assets 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 General Disclosure Package and the Prospectus.
(g) At the date hereof, the Representative shall have received a letter from each of KPMG LLP and McGladrey & ▇▇▇▇▇▇, LLP dated such date, in form and substance reasonably satisfactory to the Representative, together with signed or reproduced copies of such letters for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus.
(h) On the Closing Date (or the applicable Date of Delivery, as the case may be), the Representative shall have received a letter, dated the Closing Date (or such Date of Delivery, as the case may be), of each of KPMG LLP and McGladrey & ▇▇▇▇▇▇, LLP, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (g) of this Section 6, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date (or such Date of Delivery, as the case may be).
(i) Subsequent to the date hereof or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(g) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business, assets or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the General Disclosure Package and the Prospectus, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus, (iii) any downgrading in, or withdrawal of, the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 1933 Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating), (iv) any suspension or material limitation by the Commission of trading in the Common Stock or trading in securities generally on the NYSE or any setting of minimum or maximum prices on such Exchange, or maximum ranges of prices have been required, by such Exchange or by order of the Commission, FINRA or any other governmental authority, (v) any banking moratorium declared either by federal or Illinois or New York State authorities or (vi) any outbreak or significant escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis or any significant change in national or international political, financial or economic condition, the effect of which on financial markets is such as to make it, in the judgment of the Representative, impractical or inadvisable to proceed with the offering or delivery of the Securities Actas contemplated by the General Disclosure Package and the Prospectus.
(j) On or prior to the Closing Date, the Representative shall have received lock-up agreements substantially in the form of Exhibit D hereto (the “Lock-up Agreements”) from each of the executive officers and directors listed on Schedule III hereof.
(k) On the Closing Date, the Securities shall have been approved for listing on the NYSE, subject only to official notice of issuance.
(l) On the Closing Date (or the applicable Date of Delivery, as the case may be), counsel for the Underwriters shall have been furnished with such other documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters.
(m) Prior to the Closing Date (or the applicable Date of Delivery, as the case may be), the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request. Any certificate or document signed by any officer of the Company or any of it subsidiaries and delivered to the Underwriters, or to counsel for the Underwriters, shall be deemed a representation and warranty by the Company to the Underwriters as to the statements made therein. The Company will furnish the Representative with such conformed copies of such opinions, certificates, letters and documents as the Representative reasonably requests. The Representative may in its sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the Closing Date (or the applicable Date of Delivery, as the case may be) or otherwise. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or the applicable Date of Delivery, as the case may be, by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the offices of Sidley Austin LLP, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on the Closing Date (or the applicable Date of Delivery, as the case may be).
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate certificates furnished pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No For the period from and after effectiveness of this Agreement and prior to the Closing Date:
(i) no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under post-effective amendment to the Securities Act that would prevent its useRegistration Statement, shall have been issued be in effect and no proceedings for that such purpose shall have been instituted or threatened by the SEC; Commission, and the Final Prospectus Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf registration statement form (unless the Shares are duly registered in the manner contemplated by Rule 401(g)(2) to the satisfaction of the Representatives prior to the Closing Date);
(ii) the Company shall have been filed the preliminary prospectus and the Prospectus with the SEC pursuant to Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430B, and such post-effective amendment shall have become effective (if not later than automatically effective under the close rules of business on the second business day following Commission);
(iii) the execution and delivery of this Agreement; Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act Act, shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule or, to the extent applicable, under Rule 164(b); and
(iv) the NASD shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(b) The Company shall have furnished to the Representatives the opinion of ▇▇▇▇▇ Mulliss & Wicker, PLLC, counsel for the Company, dated the Closing Date, to the effect of paragraphs (i) and (v) through (xiv) below, and the opinion of the General Counsel of the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) through (iv) below:
(i) the Company is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware, has the corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and the Prospectus, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the “Principal Subsidiary Bank”) is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) each of the Company and the Principal Subsidiary Bank is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the Company or the Principal Subsidiary Bank, as the case may be, is required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock of the Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and (except as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except as otherwise set forth in the Disclosure Package and the Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors’ qualifying shares) are owned, directly or indirectly, by Rule 433 the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens or encumbrances;
(iv) such counsel is without knowledge that (1) there is any pending or threatened action, suit or proceeding before or by any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement, the Disclosure Package, or the Prospectus which is omitted or not adequately disclosed therein, or (2) any franchise, contract or other document of a character required to be described in the Registration Statement, the Disclosure Package, or the Prospectus, or to be filed as an exhibit to the Registration Statement, is not so described or filed as required;
(v) the Deposit Agreement, the Depositary Shares and the Preferred Stock conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Prospectus;
(vi) the Company has filed a preliminary listing application and all required supporting documents with respect to the Depositary Shares with the New York Stock Exchange, and such counsel has received no information stating that the Depositary Shares will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution;
(vii) the Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment to the Registration Statement, has been issued, and such counsel is without knowledge that any proceeding for that purpose has been instituted or threatened, or that the Company has received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to the use of the automatic shelf registration statement form; and the Registration Statement, the Disclosure Package, and the Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act;
(viii) this Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in this Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and similar bank regulatory powers and to the application of principles of public policy;
(ix) no authorization, approval, consent or order of any court or governmental agency or body in the United States is necessary or required on behalf of the Company for the consummation of the transactions contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the blue sky, state securities or insurance or similar laws of the United States in connection with the purchase and distribution of the Depositary Shares by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(x) such counsel is without knowledge of any rights to the registration of securities of the Company under the Registration Statement which have not been waived by the holders of such rights or which have not expired by reason of lapse of time following notification of the Company’s intention to file the Registration Statement;
(xi) the shares of Preferred Stock, and any shares of Preferred Stock as to which the option granted in Section 2 of this Agreement has been exercised, have been duly authorized and, when paid for as contemplated herein, will be duly issued, fully paid and nonassessable;
(xii) the Depositary Shares, including any Depositary Shares subject to the over-allotment option granted in Section 2 of this Agreement, have been duly and validly authorized for issuance and sale, and, when the Initial Shares and any Option Shares are issued and delivered against payment therefor pursuant to this Agreement, the Depositary Shares will be duly and validly issued and fully paid and non-assessable; and all corporate action required to be taken for the authorization, issue and sale of the Depositary Shares has been validly and sufficiently taken and the Depositary Shares represent legal and valid interests in the Preferred Stock.
(xiii) neither the issuance and sale of the Preferred Stock or the Depositary Shares, nor the consummation of any other of the transactions herein contemplated or contemplated by the Deposit Agreement nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach of, or constitute a default under (1) the certificate of incorporation or by-laws of the Company, each as amended to date, or (2) the terms of any indenture or other material agreement or instrument known to such counsel and to which the Company or the Principal Subsidiary Bank is a party or bound, or (3) any order, law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Principal Subsidiary Bank; and
(xiv) the Deposit Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and similar bank regulatory powers and to the application of principles of public policy. In rendering such opinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no view as to portions of the Registration Statement, the Disclosure Package, or the Prospectus consisting of financial statements and other financial, accounting and statistical information and it has not independently verified, is not passing upon and assumes no responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package, or the Prospectus or any amendment or supplement thereto (other than as stated in (v) above), it has no reason to believe that such remaining portions of the Registration Statement or any amendment thereto as of the time it became effective, as of the Applicable Time or as of the date of such opinion, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that, subject to the foregoing with respect to financial statements and other financial, accounting and statistical information, the Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statement therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, as amended or supplemented, as of its date or as of the date of such opinion contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of North Carolina, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, upon the opinion of counsel to the Underwriters, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriters; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.
(c) The Representatives shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Initial Shares, the Registration Statement, the Disclosure Package, and the Prospectus and any other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by any Senior Vice President or Treasurer or any other authorized officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, and the Prospectus and this Agreement and they are without knowledge that:
(i) the representations and warranties of the Company in this Agreement are not true and correct with the same force and effect as though expressly made at and as of the Closing Date and the Company has not performed or complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) any stop order suspending the effectiveness of the Registration Statement has been issued or any proceedings for that purpose have been instituted or threatened by the Commission; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus, there has been any material adverse change or any development involving a prospective material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(e) At the time this Agreement is executed, PricewaterhouseCoopers LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated as of the date of this Agreement, in form and substance satisfactory to the Representatives, confirming that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) They are an independent registered public accounting firm with respect to the Company within the meaning of the Securities Act and the applicable rules and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (United States).
(ii) In their opinion, the consolidated financial statements of the Company and its subsidiaries audited by them and included or incorporated by reference in the Registration Statement, the preliminary prospectus and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act and the related rules and regulations adopted by the Commission.
(iii) On the basis of procedures (but not an audit in accordance with generally accepted auditing standards) consisting of:
(a) Reading the minutes of the meetings of the stockhold
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will hereunder shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein, herein as of the date hereof and on each Delivery Date, to the accuracy of any material statements made in any certificates, opinions, affidavits, written statements or letters furnished to the Representative(s) or to counsel to the Underwriters (“Underwriters’ Counsel”) pursuant to the provisions hereof, as to the performance by the Company of its respective obligations hereunder and to each of the date following additional conditions precedent:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filings pursuant to the Rules and Regulations and all filings (including, without limitation, the Term Sheet) required by Rule 433 or Rule 424(b) shall have been made within the periods required by such Rules, and no such filings will have been made without the consent of the Representative(s).
(b) No order suspending the effectiveness of any amendment to the Registration Statement filed after or preventing or suspending the date hereof use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or suspending the qualification of the Indenture, shall be in effect and prior no proceedings for such purpose shall be pending before or threatened by the Commission; no notice of objection of the Commission to use the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the Rules and Regulations shall have been received by the Company; and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the Closing Date (including the filing of any document incorporated by reference therein) and as reasonable satisfaction of the Closing Date Representative(s).
(c) The Company shall have furnished to the Representative(s) the opinion of the Chief Legal Officer, General Counsel or an Associate General Counsel of the Company, addressed to the Underwriters and dated the day of such Delivery Date, to the effect that:
(i) The Company has been duly incorporated and is validly existing and in good standing as a corporation under the law of the jurisdiction of its incorporation and has full corporate power to conduct the businesses in which it is engaged as described in the Prospectus. Each of the Significant Subsidiaries that is incorporated under the laws of the United States or any Additional Closing DateState or territory thereof (a “Domestic Significant Subsidiary”) is a duly incorporated and validly existing corporation in good standing under the law of its jurisdiction of incorporation, and has full corporate power and authority to conduct its business as described in the Prospectus. Each of the Company and the Domestic Significant Subsidiaries is duly qualified to do business as a foreign corporation, is in good standing in its jurisdiction of incorporation and is duly registered as a broker-dealer, broker, dealer or investment advisor, as the case may be, in each jurisdiction in which the nature of the business conducted by it or in which the ownership or holding by lease of the properties owned or held by it requires such qualification or registration, except for such jurisdictions where the failure to so qualify, to be in good standing or to register would not have a Material Adverse Effect.
(ii) All the outstanding shares of capital stock of the Domestic Significant Subsidiaries have been duly authorized and are validly issued and outstanding and are fully paid and non-assessable and, except for directors’ qualifying shares, are owned by the Company or a subsidiary of the Company free and clear of any claims, liens, encumbrances and security interests.
(iii) The Securities (other than any Underlying Debt Securities), the Indenture (if the Securities include Debt Securities or Warrants for Debt Securities) and each Warrant Agreement (if the Securities include Warrants) conforms, and any Underlying Debt Securities, when so issued and delivered and sold, will conform in all material respects to the descriptions thereof contained in the Prospectus.
(iv) Each of the Indenture (if the Securities include Debt Securities or Warrants for Debt Securities) and the Warrant Agreements (if the Securities include Warrants) has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding instrument enforceable against the Company in accordance with its terms; the Indenture (if the Securities include Debt Securities or Warrants for Debt Securities) has been duly qualified under the Trust Indenture Act; and the Securities (other than any Underlying Debt Securities) have been duly authorized, executed and issued by the Company, and, when executed and authenticated as specified in the Indenture (if the Securities include Debt Securities) and the Warrant Agreement (if the Securities include Warrants) and delivered against payment therefore in the manner provided in the Indenture(in the case of Debt Securities) and the applicable Warrant Agreement (in the case of Warrants), in accordance with this Agreement, will constitute valid and legally binding obligations of the Company entitled to the benefits of the Indenture (in the case of Debt Securities) and the Warrant Agreement (in the case of Warrants), provided, however, that the foregoing is subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally from time to time in effect, to general equitable principles (whether considered in a proceeding at law or in equity) and to an implied covenant of good faith and fair dealing).
(v) No consent, approval, authorization, order, registration or qualification of any court or governmental agency or body is required for the accuracy consummation of the transactions contemplated in this Agreement, except for (1) such consents, approvals, authorizations, orders registrations or qualifications as have been obtained under the Securities Act and such as may be required under the Exchange Act under state securities laws and Blue Sky laws of any jurisdiction, and (2) the qualification of the Indenture(if the Securities include Debt Securities or Warrants for Debt Securities) under the Trust Indenture Act, which has been obtained.
(vi) Such counsel does not know of any contracts or other documents that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Rules and Regulations which have not been filed as exhibits to the Registration Statement or incorporated therein by reference as permitted by the Rules and Regulations.
(vii) Except as described in the Registration Statement, the most recent Preliminary Prospectus and the Prospectus, such counsel does not know of any litigation or any governmental proceeding pending or threatened against the Company or any of its subsidiaries that might reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect or that is required to be disclosed in the Registration Statement, the most recent Preliminary Prospectus and the Prospectus.
(viii) To such counsel’s knowledge, neither the Company nor any of the Domestic Significant Subsidiaries is in violation of its corporate charter or by-laws, nor in default under any agreement, indenture or instrument known to such counsel, which violation or default might reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(ix) This Agreement has been duly authorized, executed and delivered by the Company; the execution, delivery and performance of this Agreement by the Company will not conflict with, or result in the creation or imposition of any lien, charge or encumbrance upon any of the assets of the Company or the Domestic Significant Subsidiaries pursuant to the terms of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel and to which the Company or the Domestic Significant Subsidiaries is a party or bound, or result in a violation of the corporate charter or by-laws of the Company or the Domestic Significant Subsidiary or any statute, rule, regulation or any order known to such counsel of any court or governmental agency having jurisdiction over the Company, the Domestic Significant Subsidiaries or any of their respective properties, the effect of which conflict, violation or default might reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(x) The Registration Statement has become effective under the Securities Act, and, to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted or threatened by the Commission, and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the Rules and Regulations has been received by the Company.
(xi) The Registration Statement, the Prospectus and each amendment thereof or supplement thereto (except that no opinion need be expressed as to the financial statements and notes thereto or the schedules or other financial or statistical data or the Form T-1 included or incorporated by reference therein) comply as to form in all material respects with the requirements of the Securities Act and the Rules and Regulations. If the Securities include Debt Securities or Warrants that may be exercised for or settled by delivery of Underlying Company Securities or Other Underlying Securities, such opinion will cover the additional matters set forth in Schedule VI hereto. Such counsel shall also have furnished a statement that although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and the Prospectus (except as to those matters stated in paragraph (iii) of this subsection (d)), such counsel has no reason to believe that (A) the Registration Statement, as of the latest Effective Date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading (B) the Pricing Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading or (C) the Prospectus as of its date and as of such Delivery Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (except, with respect to (A), (B) and (C) above, that no statement need be made as to the financial statements and notes thereto or the schedules or other financial or statistical data or the Form T-1 included or incorporated by reference therein). In rendering such opinion and statement, such counsel may rely upon opinions of local counsel satisfactory to the Representative(s) for matters not governed by New York law and may rely as to matters of fact, to the extent he or she deems proper, upon certificates or affidavits of officers of the Company’s officers made in any , the Trustee and public officials. If the Securities include Debt Securities or Warrants for Debt Securities, such counsel may rely on a certificate furnished pursuant of the Trustee with respect to the provisions execution of the Securities by the Company and the authentication thereof by the Trustee.
(d) The Representative(s) shall have received from Underwriters’ Counsel such opinion or opinions, dated the day of such Delivery Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative(s) may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative(s) a certificate of its Chief Executive Officer, its President, Chief Operating Officer, Chief Administrative Officer, any Executive Vice President, Senior Vice President or Vice President, and its Chief Financial Officer, its Treasurer, its Financial Controller or its Global Head of Asset Liability Management (or other officer performing substantially the same function), dated the day of such Delivery Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus and this Agreement, and that, to the performance and observance by the Company best of all of its covenants and agreements herein contained and to the following additional conditionstheir knowledge after due inquiry:
(ai) The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of such Delivery Date with the same effect as if made on such Delivery Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Delivery Date.
(ii) No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, shall have Statement has been issued and no proceedings for that purpose shall have been instituted or threatened by threatened; and no notice of objection of the SEC; Commission to the Final Prospectus shall have been filed with use of the SEC Registration Statement or any post-effective amendment thereto pursuant to Rule 424(b401(g)(2) of the Rules and Regulations has been received by the Company; and
(iii) (w) The Registration Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (x) the Pricing Disclosure Package, as of the Applicable Time, did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (y) the Prospectus, did not, as of its date, and does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (z) since the applicable Effective Date of the Registration Statement there has not occurred any event required to be set forth in an amended or supplemented Prospectus which has not been so set forth.
(f) At each Delivery Date, a nationally recognized independent registered public accounting firm shall have furnished to the Representative(s) a letter, dated the day of such Delivery Date, confirming that they are independent auditors with respect to the Company within the meaning of the Securities Act not later than and in form and substance satisfactory to the close Representative(s), stating in effect that:
(i) In their opinion, the consolidated financial statements of business on the second business day following Company and its subsidiaries, and the execution supporting schedules, included in the Registration Statement and delivery the Prospectus and audited by them comply as to form in all material respects with the applicable accounting requirements of this Agreement; the Securities Act and any material required to be filed the Exchange Act and the related published rules and regulations thereunder.
(ii) On the basis of a reading of the unaudited consolidated financial statements of the Company and its subsidiaries, if any, included in the Registration Statement and the Prospectus and of the latest unaudited consolidated financial statements made available by the Company pursuant and ▇▇▇▇▇▇ Brothers Inc., carrying out certain specified procedures (but not an audit in accordance with generally accepted auditing standards), a reading of the minutes of the meetings of the directors of the Company and ▇▇▇▇▇▇ Brothers Inc., and inquiries of certain officials of the Company, who have responsibility for financial and accounting matters of the Company and its subsidiaries, as to Rule 433(d) under transactions and events subsequent to the Securities Act shall have been filed with the SEC within the applicable time periods prescribed for such filings by Rule 433 under the Securities Act.date of the
Appears in 1 contract
Sources: Underwriting Agreement (Lehman Brothers Holdings Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date Units described in Sections 2(a) and the Option Shares on any Additional Closing Date, as the case may be, will 2(b) hereof shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereofExecution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date and (including in the filing case of any document incorporated by reference therein) and as of Units delivered after the Closing Date or Date) any Additional Closing Datesettlement date pursuant to Section 3(b) hereof, as the case may be, and to (ii) the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates delivered pursuant to the provisions of this Agreementhereof, to (iii) the performance and observance by the Company of all of its covenants obligations hereunder, and agreements herein contained and to (iv) the following additional conditions:
(a) No The Registration Statement shall have become effective (or, if a post-effective amendment is required to be filed pursuant to Rule 430A under the Act, such post-effective amendment shall become effective) not later than ___ p.m. _____ time, on the execution date hereof or at such later date and time as you may approve in writing and, at the Closing Date (and any settlement date pursuant to Section 3(b) hereof), no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, qualification in any jurisdiction shall have been issued and no proceedings for that purpose shall have been instituted or threatened by the SEC; the Final Prospectus with.
(b) The Company shall have been filed with furnished to the SEC Representative the opinion of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Lubersky, LLP, counsel for the Company, addressed to the Underwriters and dated the Closing Date (and any settlement date pursuant to Section 3(b) hereof), or other evidence satisfactory to the Representative to the effect that:
(i) The Registration Statement has become effective under the Act; any required filing of the Prospectus or any supplements thereto pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any qualification in any jurisdiction has been issued and no proceedings for that purpose have been instituted or threatened; any request from the Commission for additional information has been complied with; the Registration Statement and the Prospectus (and any supplements thereto) comply as to form in all material respects with the applicable requirements of the Act and the rules and regulations thereunder.
(ii) The Company has no subsidiaries other than those described in the Registration Statement.
(iii) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and corporate authority to own its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction in which it conducts its business or owns property and in which the failure, individually or in the aggregate, to be so qualified would have a Material Adverse Effect. The Company has all necessary and material authorizations, approvals, orders, licenses, certificates and permits of and from all government regulatory officials and bodies, to own is properties and conduct is business as described in the Prospectus, except where failure to obtain such authorizations, approvals, orders, licenses, certificates or permits would not have a Material Adverse Effect.
(iv) the Company does not own any shares of capital stock or any other equity securities of any corporation or any equity interest in any firm, partnership, association or other entity other than as described in the Prospectus and ownership interests that would not have a Material Adverse Effect.
(v) The Company has an authorized share capitalization as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; all outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable and the certificates therefor are in valid and sufficient form; there are no other classes of stock outstanding except Common Stock and as described in the Prospectus; all outstanding options to purchase shares of Common Stock have been duly and validly authorized and issued; except as described in the Prospectus, there are no options, warrant or rights to acquire, or debt instruments convertible into or exchangeable for, or other agreements or understandings to which the Company is a party, outstanding or in existence, entitling any person to purchase or otherwise acquire any shares of capital stock of the Company; the issuance and sale of the Securities Act not later have been duly and validly authorized and, when issued and delivered and paid for, the Securities will be fully paid and nonassessable and free from preemptive rights, and will conform in all respects to the description thereof contained in the Prospectus; the Redeemable Warrant and Underwriters' Warrant constitute valid and binding obligations of the Company enforceable in accordance with their terms and the Company has reserved a sufficient number of shares of Common Stock for issuance upon exercise thereof; the Redeemable Warrant and Underwriters' Warrant possess the rights, privileges and characteristics as represented in the forms filed as Exhibits to the Registration Statement and as described in the Prospectus; the Securities (other than the close of business Underwriters' Warrant) have been approved for listing on the second business day following American Stock Exchange upon notice of issuance thereof; the certificates for the Securities are in valid and sufficient form. Each offer and sale of securities of the Company described in Item 26 of Part II of the Registration Statement was effected in compliance with the Act and the rules and regulations thereunder and with all applicable Blue Sky laws.
(vi) Other than as described in the Prospectus, there is no pending or, to the best knowledge of such counsel, threatened action, suit or proceeding before any court or governmental agency, authority or body, domestic or foreign, or any arbitrator involving the Company of a character required to be disclosed in the Registration Statement or the Prospectus that is not adequately disclosed in the Prospectus, and, to the best knowledge of such counsel, there is no contract or other document of a character required to be described in the Registration Statement or the Prospectus, or to be filed as an exhibit, which is not described or filed as required.
(vii) This Agreement has been duly authorized, executed and delivered by the Company and constitutes the legal, valid and binding agreement and obligation of the Company enforceable against it in accordance with its terms (subject to standard bankruptcy and equitable remedy exceptions, and limitations under the Act as to the enforceability of indemnification provisions).
(viii) The Company has full corporate power and corporate authority to enter into and perform is obligations under this Agreement and to issue, sell and deliver the Securities in the manner provided in this Agreement; and the Company has taken all necessary corporate action to authorize the execution and delivery of, and the performance of is obligations under, this Agreement.
(ix) Neither the offering, issue and sale of the Securities nor the consummation of any other of the transactions contemplated herein, nor the fulfillment of the terms hereof, will conflict with or result in a breach or violation of, or constitute a default under, or result in the imposition of a lien on any properties of the Company, or an acceleration of indebtedness pursuant to, the Certificate of Incorporation or bylaws of the Company, or any of the terms of any indenture or other agreement or instrument to which the Company is a party or by which is properties are bound, or any law, order, judgment, decree, rule or regulation applicable to the Company of any court, regulatory body, administrative agency, governmental body, stock exchange or arbitrator having jurisdiction over the Company. The Company is not in violation of is Certificate of Incorporation or bylaws or in breach of or default under any of the terms of any indenture or other agreement or instrument to which it is a party or by which it or its properties are bound, which breach or default would, individually or in the aggregate, have a Material Adverse Effect.
(x) Except as disclosed in the Prospectus, no person has the right, contractual or otherwise, to cause the Company to issue to it any shares of capital stock in consequence of the issue and sale of the Securities to be sold by the Company hereunder nor does any person have preemptive rights, or rights of first refusal or other rights to purchase any of the Securities. Except as referred to in the Prospectus, no person holds a right to require or participate in a registration under the Act of Common Stock or any other equity securities of the Company.
(xi) No consent, approval, authorization or order of, or declaration or filing with, any court or governmental agency or body is required to be obtained or filed by or on behalf of the Company in connection with the transactions contemplated herein, except such as may have been obtained or made and registration of the Securities under the Act, and such as may be required under the Blue Sky laws of any jurisdiction.
(xii) The Company is not in violation of or default under any judgment, ruling, decree or order or any statute, rule or regulation of any court or other United States governmental agency or body, including any applicable laws respecting employment, immigration and wages and hours, in each case, where such violation or default could have a Material Adverse Effect. The Company is not involved in any labor dispute, nor, to the best knowledge of such counsel, is any labor dispute threatened.
(xiii) The Company is not an investment company subject to registration under the Investment Company Act of 1940, as amended.
(xiv) The preparation and the filing of the Registration Statement with the Commission have been duly authorized by and on behalf of the Company, and the Registration Statement has been duly executed pursuant to such authorization by and on behalf of the Company.
(xv) The Company owns or possesses, or has the right to use pursuant to licenses, sublicenses, agreements, permissions or otherwise, adequate patents, copyrights, trade names, trademarks, service marks, licenses and other intellectual property rights necessary to carry on its business as described in the Prospectus, and, except as set forth in the Prospectus, neither the Company n has received any notice of either (i) default under any of the foregoing or (ii) infringement of or conflict with asserted rights of others with respect to, or challenge to the validity of, any of the foregoing which, in the aggregate, if the subject of an unfavorable decision, ruling or finding, could have a Material Adverse Effect, and counsel knows of no facts which could reasonably be anticipated to serve as the basis for any such notice. In addition, such counsel shall state that such counsel has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants of the Company and representatives of the Underwriters at which the contents of the Registration Statement and Prospectus were discussed and, although such counsel is not passing upon and does not assume responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or Prospectus (except as and to the extent stated in the first one clauses of subparagraph (v) above), on the basis of the foregoing and on such counsel's participation in the preparation of the Registration Statement and the Prospectus, nothing has come to the attention of such counsel that causes such counsel to believe that the Registration Statement, at the Effective Date and at the Closing Date (and any settlement date pursuant to Section 3(b) hereof), contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, at the date of such Prospectus or at the Closing Date (or any settlement date pursuant to Section 3(b) hereof), contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel need express no comment with respect to the Financial Statements and schedules and other financial or statistical data included in the Registration Statement or Prospectus). References to the Prospectus in this Section 6(b) shall include any supplements thereto.
(c) The Representative shall have received from ▇▇▇▇▇▇▇▇ Schrest & Mjnick, P.C., counsel for the Underwriters, an opinion dated the Closing Date (and any settlement date pursuant to Section 3(b) hereof), with respect to the issuance and sale of the Securities, and with respect to the Registration Statement, the Prospectus and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representative a certificate of the Company, signed by its President and Chief Executive Officer, and Vice President-Finance and Secretary, dated the Closing Date (and any settlement date pursuant to Section 3(b) hereof), to the effect that each has carefully examined the Registration Statement, the Prospectus (and any supplements thereto) and this Agreement, and, after due inquiry, that:
(i) As of the Closing Date (and any settlement date pursuant to Section 3(b) hereof), the statements made in the Registration Statement and the Prospectus are true and correct and the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(ii) No order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities under the securities or Blue Sky laws of any jurisdiction is in effect and no proceeding for such purpose is pending before or, to the knowledge of such officers, threatened or contemplated by the Commission or the authorities of any such jurisdiction; and any material required request for additional information with respect to be filed the Registration Statement or the Prospectus on the part of the staff of the Commission or any such authorities brought to the attention of such officers has been complied with to the satisfaction of the staff of the Commission or such authorities.
(iii) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any change in the capital stock or long-term debt of the Company, except as set forth in or contemplated by the Registration Statement and the Prospectus, (y) there has not been any material adverse change in the general affairs, business, prospects, properties, management, results of operations or condition (financial or otherwise) of the Company, whether or not arising from transactions in the ordinary course of business, in each case, other than as set forth in or contemplated by the Registration Statement and the Prospectus, and (z) the Company pursuant to Rule 433(dhas not sustained any material interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus.
(iv) under Since the Securities Act shall have respective dates as of which information is given in the Registration Statement and the Prospectus, there has been filed with the SEC within the applicable time periods prescribed for such filings by Rule 433 under the Securities Act.no litigation instituted agains
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated therein by reference thereinreference), as of the Time of Sale and as of the Closing Date, to the accuracy in all material respects of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the satisfaction of the following additional conditions in all material respects:
(a) The Registration Statement has become effective and on the Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued under the Act or proceedings therefor initiated or threatened by the Commission, no notice pursuant to Rule 401(g)(2) of the Regulations shall have been received by the Company and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters. A prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). The Company shall have paid the required Commission filing fees relating to the Securities within the time period required by Rule 456(1)(i) of the Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(b) The Company shall have furnished to the Representatives the opinion of counsel for the Company, dated the Closing Date, with respect to the issuance and sale of the Notes, the Indenture, the Registration Statement, the Prospectus and other related matters as the Representatives may reasonably require.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, this Agreement, the Indenture, the Registration Statement, the Time of Sale Prospectus, the Prospectus and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board, the President or any Vice President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Time of Sale Prospectus, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of their knowledge:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or any Additional satisfied at or prior to the Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to the provisions of this Agreement, to the performance and observance by the Company of all of its covenants and agreements herein contained and to the following additional conditions:;
(aii) No no stop order suspending the effectiveness of the Registration Statement, as amended from time to timeamended, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, shall have has been issued and no proceedings for that purpose shall have been instituted or threatened by or, to their knowledge, threatened; and the SEC; Company has not received from the Final Prospectus shall have been filed with the SEC Commission any notice pursuant to Rule 424(b401(g)(2) under the Act objecting to use of the automatic shelf registration statement form; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no material adverse change, or any development that would reasonably be expected to result in a material adverse change, in the business, results of operations or financial condition of the Company and its subsidiaries, considered as one entity, except as set forth or contemplated in the Registration Statement, the Time of Sale Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) On the date of this Agreement and on the Closing Date, the Company’s registered independent public accountants shall have furnished to the Representatives, at the request of the Company, letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, (1) confirming that they are independent accountants with respect to the Company as required by the Securities Act not later than and the close rules and regulations of business the Commission thereunder and (2) with respect to the accounting, financing, or statistical information (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) contained in the Registration Statement or Prospectus or incorporated by reference therein, and containing statements and information of the type ordinarily included in accountants’ SAS 72 letters, as amended by SAS 6, “Comfort Letters”, to underwriters with respect to the financial statements and certain financial information contained in, or incorporated by reference into, the Registration Statement, and the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the second Closing Date shall use a “cut-off” date no more than three business day following days prior to the execution Closing Date.
(f) Subsequent to the Time of Sale or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Time of Sale Prospectus (exclusive of any amendment thereof or supplement thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving or affecting the business, results of operations or financial condition 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 Time of Sale Prospectus (exclusive of any amendment thereof or supplement thereto) and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of this Agreement; and any material required to be filed the Securities as contemplated by the Company pursuant Registration Statement (exclusive of any amendment thereof), the Time of Sale Prospectus (exclusive of any amendment thereof or supplement thereto) and the Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Time of Sale, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 433(d436(g) under the Securities Act Act).
(h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 6 shall not have been filed with fulfilled in all material respects when and as provided in this Agreement, or if any of the SEC within opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the applicable Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled by the Representatives at, or at any time periods prescribed for prior to, the Closing Date. Notice of such filings cancellation shall be given to the Company in writing or by Rule 433 under the Securities Acttelephone or telegraph confirmed in writing.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate certificates furnished pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No For the period from and after effectiveness of this Agreement and prior to the Closing Date: 8
(i) no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under post-effective amendment to the Securities Act that would prevent its useRegistration Statement, shall have been issued be in effect and no proceedings for that such purpose shall have been instituted or threatened by the SEC; Commission, and the Final Prospectus Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to use of the automatic shelf registration statement form (unless the Shares are duly registered in the manner contemplated by Rule 401(g)(2) to the satisfaction of the Representative prior to the Closing Date);
(ii) the Company shall have been filed the preliminary prospectus and the Prospectus with the SEC pursuant to Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430B, and such post-effective amendment shall have become effective (if not later than automatically effective under the close rules of business on the second business day following Commission);
(iii) the execution and delivery of this Agreement; Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act Act, shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule or, to the extent applicable, under Rule 164(b); and
(iv) the Financial Industry Regulatory Authority, Inc. ("FINRA") shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(b) The Company shall have furnished to the Representative the opinion of ▇▇▇▇▇ Mulliss & Wicker, PLLC, counsel for the Company, dated the Closing Date, to the effect of paragraphs (i) and (v) through (xiii) below, and the opinion of the General Counsel of the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) through (iv) below:
(i) the Company is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware, has the corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and the Prospectus, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the "Principal Subsidiary Bank") is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) each of the Company and the Principal Subsidiary Bank is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the Company or the Principal Subsidiary Bank, as the case may be, is required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock of the Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and (except 9 as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except as otherwise set forth in the Disclosure Package and the Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors' qualifying shares) are owned, directly or indirectly, by Rule 433 the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens or encumbrances;
(iv) such counsel is without knowledge that there is (1) any pending or threatened action, suit or proceeding before or by any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement, the Disclosure Package or the Prospectus which is omitted or not adequately disclosed therein, or (2) any franchise, contract or other document of a character required to be described in the Registration Statement, the Disclosure Package or the Prospectus, or to be filed as an exhibit to the Registration Statement, is not so described or filed as required;
(v) the Deposit Agreement, the Depositary Shares and the Preferred Stock conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Prospectus;
(vi) the Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment to the Registration Statement, has been issued, and such counsel is without knowledge that any proceeding for that purpose has been instituted or threatened, or that the Company has received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form; and the Registration Statement, the Disclosure Package and the Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements under the Securities Act and the Exchange Act;
(vii) this Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by you, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in this Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and similar bank regulatory powers and to the application of principles of public policy;
(viii) no consent, approval, authorization or order of any court or governmental agency or body in the United States is necessary or required on behalf of the Company for the consummation of the transactions contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the blue sky, state securities or insurance or similar laws of the United States in connection with the purchase and 10 distribution of the Depositary Shares by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(ix) the shares of Preferred Stock have been duly authorized and, when paid for as contemplated herein, will be duly issued, fully paid and nonassessable;
(x) the Depositary Shares have been duly and validly authorized for issuance and sale, and, when issued and delivered against payment therefor pursuant to this Agreement, the Depositary Shares will be duly and validly issued and fully paid and non-assessable; and all corporate action required to be taken for the authorization, issue and sale of the Depositary Shares has been validly and sufficiently taken and the Depositary Shares represent legal and valid interests in the Preferred Stock;
(xi) neither the issuance and sale of the Preferred Stock or the Depositary Shares, nor the consummation of any other of the transactions herein contemplated or contemplated by the Deposit Agreement nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach of, or constitute a default under (1) the certificate of incorporation or by-laws of the Company, each as amended to date, (2) the terms of any indenture or other material agreement or instrument known to such counsel and to which the Company or the Principal Subsidiary Bank is a party or bound, or (3) any order, law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Principal Subsidiary Bank;
(xii) the Deposit Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the other parties thereto, constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and similar bank regulatory powers and to the application of principles of public policy; and
(xiii) such counsel is without knowledge of any rights to the registration of securities of the Company under the Registration Statement which have not been waived by the holders of such rights or which have not expired by reason of lapse of time following notification of the Company's intention to file the Registration Statement. In rendering such opinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no view as to portions of the Registration Statement, the Disclosure Package, or the Prospectus consisting of financial statements and other financial, accounting and statistical information and it has not independently verified, is not passing upon and assumes no responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package, or the Prospectus or any amendment or supplement thereto (other than as stated in (v) above), it has no reason to believe that such remaining portions of the Registration Statement or any amendment thereto as of the time it became effective, as of the Initial Sale Time or as of the date of such opinion, contained 11 any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that, subject to the foregoing with respect to financial statements and other financial, accounting and statistical information, the Disclosure Package, taken as a whole, as of the Initial Sale Time, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statement therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, as amended or supplemented, as of its date or as of the date of such opinion contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel also need not pass upon nor assume any responsibility for ascertaining whether or when any of the information contained in each Disclosure Package was conveyed to any purchaser of the Depositary Shares. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of North Carolina, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, upon the opinion of counsel to the Underwriters, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriters; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.
(c) The Representative shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package and the Prospectus and any other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representative a certificate of the Company, signed by any Senior Vice President or Treasurer or any other authorized officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and this Agreement and they are without knowledge that:
(i) the representations and warranties of the Company in this Agreement are not true and correct with the same force and effect as though expressly made at and as of the Closing Date and the Company has not performed or complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) any stop order suspending the effectiveness of the Registration Statement has been issued or any proceedings for that purpose have been instituted or threatened by the Commission; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus, there has been any material adverse change or any development involving a prospective material adverse change in the condition (financial or 12 other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(e) At the time this Agreement is executed, PricewaterhouseCoopers LLP shall have furnished to the Representative a letter or letters (which may refer to letters previously delivered to one or more of the Representative), dated as of the date of this Agreement, in form and substance satisfactory to the Representative, confirming that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) They are an independent registered public accounting firm with respect to the Company within the meaning under the Securities Act and the applicable rules and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (United States).
(ii) In their opinion, the consolidated financial statements of the Company and its subsidiaries audited by them and included or incorporated by reference in the Registration Statement, the preliminary prospectus and the Prospectus comply as to form in all material respects with the applicable accounting requirements under the Securities Act and the Exchange Act and the related rules and regulations adopted by the Commission.
(iii) On the basis of procedures (but not an audit in accordance with generally accepted auditing standards) consisting of:
(a) Reading the minutes of the meetings of the stockholders, the board of directors, executive committee and audit committee of the Company and the boards of directors of the Principal Subsidiary Bank as set forth in the minute books through a specified
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will shall be subject to the accuracy of the respective representations and warranties on the part of the Company and the Selling Stockholders contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional and the Option Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate certificates furnished pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No For the period from and after effectiveness of this Agreement and prior to the Closing Date and the Option Closing Date, as the case may be:
(i) no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any post-effective amendment to the Registration Statement, shall be in effect and no proceedings for such purpose shall have been instituted or, to the Company’s knowledge, threatened by the Commission, and the Company shall not have received from the Commission any notice under pursuant to Rule 401(g)(2) under the Securities Act that would prevent its use, objecting to use of the automatic shelf registration statement form (unless the Shares are duly registered in the manner contemplated by Rule 401(g)(2) to the satisfaction of the Representatives prior to the Closing Date);
(ii) the Company shall have been issued filed any Preliminary Prospectus and no proceedings for that purpose shall have been instituted or threatened by the SEC; the Final Prospectus shall have been filed with the SEC pursuant to Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430B, and such post-effective amendment shall have become effective (if not later than automatically effective under the close rules of business on the second business day following the execution and delivery of this Agreement; and Commission);
(iii) any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act Act, shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule or, to the extent applicable, under Rule 164(b);
(iv) all requests by Rule 433 under the Securities ActCommission for additional information shall have been complied with to the reasonable satisfaction of the Representatives;
(v) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements;
(vi) the Shares to be delivered on the Closing Date or the Option Closing Date, as the case may be, shall have been approved for listing on the NYSE, subject to official notice of issuance; and
(vii) the lock-up agreements, each substantially in the form of Exhibit A hereto, between the Representatives and the directors and executive officers of the Company relating to sales and certain other dispositions of shares of capital stock of the Company or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date and the Option Closing Date, as the case may be.
Appears in 1 contract
Sources: Underwriting Agreement (Raymond James Financial Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate certificates furnished pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No For the period from and after effectiveness of this Agreement and prior to the Closing Date:
(i) no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under post-effective amendment to the Securities Act that would prevent its useRegistration Statement, shall have been issued be in effect and no proceedings for that such purpose shall have been instituted or threatened by the SEC; Commission;
(ii) the Final Prospectus Company shall have been filed the preliminary prospectus and the Prospectus with the SEC pursuant to Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430B, and such post-effective amendment shall have become effective (if not later than automatically effective under the close rules of business on the second business day following Commission);
(iii) the execution and delivery of this Agreement; Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act Act, shall have been filed with the SEC NY2-749232 Commission within the applicable time periods prescribed for such filings by under such rule or, to the extent applicable, under Rule 433 164(b) under the Securities Act; and
(iv) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(b) The Company shall have furnished to the Representative the opinion of McGuireWoods LLP, counsel for the Company, dated the Closing Date, to the effect of paragraphs (i) and (v) through (xiii) below, and the opinion of the General Counsel of the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) through (iv) below:
(i) the Company is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware, has the corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and the Prospectus, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the “Principal Subsidiary Bank”) is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) each of the Company and the Principal Subsidiary Bank is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the Company or the Principal Subsidiary Bank, as the case may be, is required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock of the Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and (except as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except as otherwise set forth in the Disclosure Package and the Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors’ qualifying shares) are owned beneficially, directly or indirectly, by the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens or encumbrances;
(iv) such counsel is without knowledge that there is (1) any pending or threatened action, suit or proceeding before or by any court or governmental agency, authority or body, domestic or foreign, or any arbitrator involving the Company or any of its subsidiaries required to be disclosed in the Registration Statement, the Disclosure Package or the Prospectus which is omitted or not adequately disclosed therein, or (2) any franchise, contract or other document required to be described in the Registration Statement, the Disclosure Package or the Prospectus, or to be filed as an exhibit to the Registration Statement, which is not so described or filed as required;
(v) the Deposit Agreement, the Depositary Shares and the Preferred Stock conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Prospectus; NY2-749232
(vi) the Registration Statement has been declared effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued, and such counsel is without knowledge that any proceeding for that purpose has been instituted or threatened; and the Registration Statement, the Disclosure Package and the Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements under the Securities Act and the Exchange Act;
(vii) this Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by you, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in this Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and any bank regulatory powers now or hereafter in effect and to the application of principles of public policy;
(viii) no consent, approval, authorization or order of any court or governmental agency or body in the United States is necessary or required on behalf of the Company for the consummation of the transactions contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the blue sky, state securities, insurance or similar laws of the United States in connection with the purchase and distribution of the Depositary Shares by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(ix) the shares of Preferred Stock have been duly authorized and, when paid for as contemplated herein, will be duly issued, fully paid and nonassessable;
(x) the Depositary Shares have been duly and validly authorized for issuance and sale, and, when issued and delivered against payment therefor pursuant to this Agreement, the Depositary Shares will be validly issued and, upon deposit of the Preferred Stock with the Depository pursuant to the Deposit Agreement, and the due execution of the Deposit Agreement and the Depositary Receipts by the Depository, will be entitled to the rights under, and the benefits of, the Deposit Agreement; and all corporate action required to be taken for the authorization, issue and sale of the Depositary Shares has been validly and sufficiently taken and the Depositary Shares represent legal and valid interests in the Preferred Stock;
(xi) neither the issuance and sale of the Preferred Stock or the Depositary Shares, nor the consummation of any other of the transactions herein contemplated or contemplated by the Deposit Agreement nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach of, or constitute a default under (1) the Company’s Amended and Restated Certificate of Incorporation or the Bylaws, as amended to date, (2) the terms of any indenture or other material agreement or instrument known to such counsel and to which the NY2-749232 Company or the Principal Subsidiary Bank is a party or bound, or (3) any order, law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Principal Subsidiary Bank;
(xii) the Deposit Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the other parties thereto, constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and any bank regulatory powers now or hereafter in effect and to the application of principles of public policy; and
(xiii) such counsel is without knowledge of any rights to the registration of securities of the Company under the Registration Statement which have not been waived by the holders of such rights or which have not expired by reason of lapse of time following notification of the Company’s intention to file the Registration Statement. In rendering such opinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no view as to portions of the Registration Statement, the Disclosure Package, or the Prospectus consisting of financial statements and other financial, accounting and statistical information and it has not independently verified, is not passing upon and assumes no responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package, or the Prospectus or any amendment or supplement thereto (other than as stated in (v) above), it has no reason to believe that such remaining portions of the Registration Statement or any amendment thereto as of the time it became effective, as of the Initial Sale Time or as of the date of such opinion, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that, subject to the foregoing with respect to financial statements and other financial, accounting and statistical information, the Disclosure Package, taken as a whole, as of the Initial Sale Time, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statement therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, as amended or supplemented, as of its date or as of the date of such opinion contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel also need not pass upon nor assume any responsibility for ascertaining whether or when any of the information contained in each Disclosure Package was conveyed to any purchaser of the Depositary Shares. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of North Carolina, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, upon the opinion of counsel to the Underwriters, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for NY2-749232 the Underwriters; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.
(c) The Representative shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package and the Prospectus and any other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representative a certificate of the Company, signed by any Senior Vice President or Treasurer or any other authorized officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and this Agreement and they are without knowledge that:
(i) the representations and warranties of the Company in this Agreement are not true and correct with the same force and effect as though expressly made at and as of the Closing Date and the Company has not performed or complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) any stop order suspending the effectiveness of the Registration Statement has been issued or any proceedings for that purpose have been instituted or threatened by the Commission;
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus, there has been any material adverse change or any development involving a prospective material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus; and
(iv) any litigation or proceeding shall be pending to restrain or enjoin the issuance or delivery of the Shares, or which in any way affects the validity of the Shares.
(e) At the time this Agreement is executed, PricewaterhouseCoopers LLP shall have furnished to the Representative a letter or letters (which may refer to letters previously delivered to one or more of the Representative), dated as of the date of this Agreement, in form and substance satisfactory to the Representative, confirming that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) They are an independent registered public accounting firm with respect to the Company within the meaning under the Securities Act and the applicable rules and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (United States). NY2-749232
(ii) In their opinion, the consolidated financial statements of the Company and its subsidiaries audited by them and included or incorporated by reference in the Registration Statement, the preliminary prospectus and the Prospectus comply as to form in all material respects with the applicable accounting requirements under the Securities Act and the Exchange Act and the related rules and regulations adopted by the Commission.
(iii) On the basis of procedures (but not an audit in accordance with generally accepted auditing standards) consisting of:
(a) Reading the minutes of the meetings of the stockholders, the board of directors, executive committee and audit committee of the Company and the boards of directors of the Principal Subsidiary Bank as set forth in the minute books through a specified date not more than five business days prior to the date of delivery of such letter;
(b) Performing the proc
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof Execution Time and prior to the Closing Date (including and, if applicable, the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Option Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No The Final Prospectus, and any supplement thereto, has been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement or any notice under Rule 401(g)(2) under the Securities Act that would prevent from any governmental authority objecting to its use, use shall have been issued and no proceedings for that purpose shall have been instituted or threatened threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇ Limited, Bermuda, counsel for the Company, to have furnished to the Representatives their opinion on matters of Bermuda law, dated the Closing Date and the Option Closing Date, as applicable, and addressed to the Representatives, to the effect that:
(i) Each of the Company, Renaissance Reinsurance, Renaissance Other, DaVinci Holdings and DaVinci Reinsurance is duly incorporated and existing under the laws of Bermuda in good standing (meaning solely that the relevant company has not failed to make any filing with any Bermuda governmental authority, or to pay any Bermuda government fee or tax, which would make it liable to be struck off the Register of Companies and thereby cease to exist under the laws of Bermuda).
(ii) The Company has the necessary corporate power and authority to execute, deliver and perform its obligations under this Agreement, the Certificate of Designation and as otherwise contemplated by the SEC; the Final Prospectus shall have been filed with the SEC pursuant to Rule 424(b) under the Securities Act not later than the close of business on the second business day following the Prospectus. The execution and delivery of this Agreement; , the Certificate of Designation and Prospectus by the Company and the performance by the Company of its obligations thereunder does not and will not violate the memorandum of association or bye–laws of the Company, Renaissance Reinsurance, Renaissance Other, DaVinci Holdings or DaVinci Reinsurance nor any material applicable law, regulation, order or decree in Bermuda.
(iii) The Company has taken all corporate action required to authorize (i) the fixing of the designations, preferences, rights and restrictions of the Securities as set out in the Certificate of Designation and (b) its execution, delivery and performance of this Agreement. This Agreement has been duly executed and delivered by or on behalf of the Company, and constitutes the valid and binding obligations of the Company in accordance with the terms thereof.
(iv) No order, consent, approval, license, authorization or validation of, filing with or exemption by any government or public body or authority of Bermuda or any sub–division thereof is required to authorize or is required in connection with the execution, delivery, performance and enforcement of this Agreement, except for consent under the Exchange Control Act 1972 (and Regulations made thereunder) which was issued by the Bermuda Monetary Authority on 7 July 2000 and the filing of the Final Prospectus with the Registrar of Companies pursuant to Section 26(2) of the Companies ▇▇▇ ▇▇▇▇.
(v) It is not necessary or desirable to ensure the enforceability in Bermuda of this Agreement that it be registered in any register kept by, or filed with, any governmental authority or regulatory body in Bermuda. However, to the extent that this Agreement creates a charge over assets of the Company, it may be desirable to ensure the priority in Bermuda of the charge that it be registered in the Register of Charges in accordance with Section 55 of the Companies ▇▇▇ ▇▇▇▇. On registration, to the extent that Bermuda law governs the priority of a charge, such charge will have priority in Bermuda over any unregistered charges, and over any subsequently registered charges, in respect of the assets which are the subject of the charge. A registration fee of $574 will be payable in respect of the registration. While there is no exhaustive definition of a charge under Bermuda law, a charge includes any interest created in property by way of security (including any mortgage, assignment, pledge, lien or hypothecation). As this Agreement is governed by the Foreign Laws, the question of whether it creates such an interest in property would be determined under the Foreign Laws.
(vi) This Agreement and issue of the Securities will not be subject to ad valorem stamp duty in Bermuda.
(vii) Each of the Company, Renaissance Reinsurance, Renaissance Other, DaVinci Holdings and DaVinci Reinsurance has all corporate power and authority necessary to conduct its business conducted by the particular entity (without reference to or including any particular subsidiary or other company) and to own, lease and operate its properties as described in the Final Prospectus and in “Item 1 – Business” and “Item 2 – Properties” of the Company’s Annual Report on Form 10–K for the year ended 31 December 2012.
(viii) The choice of the laws of the State of New York as the governing law of this Agreement is a valid choice of law and would be recognized and given effect to in any action brought before a court of competent jurisdiction in Bermuda, except for those laws (i) which such court considers to be procedural in nature, (ii) which are revenue or penal laws or (iii) the application of which would be inconsistent with public policy, as such term is interpreted under the laws of Bermuda. The submission in this Agreement to the non–exclusive jurisdiction of the Foreign Courts is valid and binding upon the Company.
(ix) Based solely upon a review of copies of (i) the Register of Members of Renaissance Reinsurance, (ii) the Register of Members of Renaissance Other, (iii) the Register of Members of DaVinci Reinsurance and (iv) the Register of Members of DaVinci Holdings, each certified by its respective Secretary at a specified day in May 2013, all of the issued and outstanding shares of Renaissance Reinsurance, of Renaissance Other, of DaVinci Reinsurance and of DaVinci Holdings have been duly authorized, validly issued, fully paid and are non–assessable (which term when used herein means that no further sums are required to be paid by the holders thereof in connection with the issue thereof). All of the shares of Renaissance Reinsurance and Renaissance Other are registered in the name of the Company. All of the class A shares of DaVinci Holdings and all of the class A shares of DaVinci Reinsurance are registered in the name of the Company.
(x) Based solely on a review of a copy of the Register of Members of the Company prepared and issued by Computershare Shareowner Services LLC at a specified time in May 2013, the issued and outstanding shares of the Company outstanding prior to the issuance of the Securities have been duly authorized, validly issued and are fully paid and are non–assessable (meaning that no further sums are required to be paid by the holders thereof in connection with the issue thereof). The Securities have been duly authorized and when issued and paid for in accordance with this Agreement, the Securities, with the rights and restrictions set out in the Certificate of Designation, will be validly issued, fully paid and non–assessable (meaning that no further sums are required to be paid by the holders thereof in connection with the issue thereof) and the issuance of the Securities will not be subject to any pre–emptive or similar rights pursuant to statute or the Company’s memorandum of association or bye–laws.
(xi) Based solely upon a review of a copy of its certificate of registration issued pursuant to the Insurance ▇▇▇ ▇▇▇▇ of Bermuda, as amended (the “Insurance Act”), Renaissance Reinsurance is duly registered in Bermuda to write general business insurance as a class 4 insurer in accordance with the provisions of the Insurance Act.
(xii) Based solely upon a review of a copy of its certificate of registration issued pursuant to the Insurance Act, DaVinci Reinsurance is duly registered in Bermuda to write general business insurance in Bermuda as a class 4 insurer in accordance with the provisions of the Insurance Act.
(xiii) The statements (A) in the Preliminary Final Prospectus and the Final Prospectus under the caption “Description of Series E Preference Shares” and in the Initial Prospectus under the caption “Description of Our Capital Shares” (excluding statements under the sub captions “Common Shares”, “Conversion Rights” and “Supermajority Requirements for Certain Amendments”) and “Enforcement of Civil Liabilities under United States Federal Securities Laws”, (B) in the Company’s Annual Report on Form 10–K for the year ended 31 December 2012, under the caption “Business – Regulation – Bermuda Regulation”, (C) in “Item 15 – Indemnification of Officers and Directors” of the Registration Statement, and (D) in the Disclosure Package, insofar as they purport to describe the provisions of the laws of Bermuda referred to therein, are accurate and correct in all material respects as at the dates such documents were filed.
(xiv) The courts of Bermuda would recognize as a valid judgment, a final and conclusive judgment in personam obtained in the United States Federal or New York State Courts sitting in the Borough of Manhattan, State of New York against the Company based upon this Agreement under which a sum of money is payable (other than a sum of money payable in respect of multiple damages, taxes or other charges of a like nature or in respect of a fine or other penalty) and would give a judgment based thereon provided that (a) such courts had proper jurisdiction over the parties subject to such judgment, (b) such courts did not contravene the rules of natural justice of Bermuda, (c) such judgment was not obtained by fraud, (d) the enforcement of the judgment would not be contrary to the public policy of Bermuda, (e) no new admissible evidence relevant to the action is submitted prior to the rendering of the judgment by the courts of Bermuda and (f) there is due compliance with the correct procedures under the laws of Bermuda.
(xv) Based solely upon searches of the Cause Book of the Supreme Court of Bermuda conducted at a specified time in May 2013 (which would not reveal details of proceedings which have been filed but not actually entered in the Cause Book at the time of our searches), there are no judgments against any of the Company, Renaissance Reinsurance, Renaissance Other, DaVinci Holdings or DaVinci Reinsurance, nor any legal or governmental proceedings pending in Bermuda to which any of the Company, the Subsidiaries or DaVinci is subject. As to matters of fact, such counsel may rely, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) include any supplements thereto at the Closing Date and the Option Closing Date, as the case may be.
(c) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and the Option Closing Date, as applicable, and addressed to the Representatives, to the effect that:
(i) The Registration Statement has become effective under the Act; such counsel has been orally advised by the Commission that no stop order suspending the effectiveness of the Registration Statement has been issued and, to the knowledge of such counsel, no proceedings for such purpose have been instituted or threatened; any required filing, pursuant to Rule 424(b) of the Act, of the Basic Prospectus, any Preliminary Final Prospectus and the Final Prospectus, and any supplements thereto, has been made in the manner and within the time period required by Rule 424(b); the Company’s registration statement on Form 8–A under the Exchange Act relating to the Securities was filed with the Commission; any required filing, pursuant to Rule 433 of the Act, of any Permitted Free Writing Prospectus listed on Schedule A hereto, and any supplements thereto, has been made in the manner and within the time period required by Rule 433 and the Registration Statement, the Preliminary Final Prospectus and the Final Prospectus (except for financial statements, notes thereto and schedules and other financial and statistical data as to which in each case such counsel need not express any opinion or belief) comply as to form in all material respects with the Act and the Exchange Act and the respective rules thereunder;
(ii) The Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Final Prospectus, will not be, required to register as an “investment company” as defined in the Investment Company Act of 1940, as amended;
(iii) To such counsel’s knowledge, the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement and the consummation of the transactions contemplated herein will not at the time of execution of this Agreement and on the date of such opinion, contravene any agreement or other instrument binding upon the Company or either of the Subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or, any statute, rule, regulation, judgment, order or decree of any U.S. governmental body, agency or court having jurisdiction over the Company or either Subsidiary, and no consent, approval, authorization, or order of, or qualification with, any U.S. governmental body, agency or court is required for the performance by the Company of its obligations under this Agreement, except such as may be required under the securities or blue sky laws of the various states in connection with the sale of the Securities (as to which such counsel need not express any opinion) or as may already have been obtained;
(iv) The statements in (A) the Disclosure Package and the Final Prospectus under the captions “Description of Series E Preference Shares,” “Certain Tax Considerations” and “Underwriting” (with respect solely to the description of this Agreement contained therein), (B) the Company’s Annual Report on Form 10–K for the year ended December 31, 2012, under the caption “Business – Regulation – U.S. Regulation,” and (C) Item 15 of the Registration Statement, in each case insofar as such statements constitute summaries of U.S. legal matters, documents or proceedings referred to therein, fairly present the information required to be shown with respect to such legal matters, documents and proceedings and fairly summarize the matters referred to therein, in each case, in all material respects (provided, however, that the statements under the caption “Certain Tax Considerations” do not address considerations that depend on circumstances specific to the holders of the Company’s common shares);
(v) Such counsel does not know of any U.S. legal or governmental proceedings pending or threatened to which the Company or either Subsidiary is a party or to which any of the properties of the Company or either Subsidiary is subject that are required to be described in the Registration Statement or the Final Prospectus and are not so described or of any U.S. statutes or regulations, or any contracts or other documents that are required to be described in the Registration Statement or the Final Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required; and
(vi) Each document, if any, filed pursuant to Rule 433(dthe Exchange Act and incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus (except for financial statements, notes thereto and schedules and other financial and statistical data as to which in each case such counsel need not express any opinion or belief) under the Securities Act shall have been filed with the SEC within the applicable time periods prescribed for such filings by Rule 433 under the Securities Act.complied when
Appears in 1 contract
Sources: Underwriting Agreement (Renaissancere Holdings LTD)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate certificates furnished pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No For the period from and after effectiveness of this Agreement and prior to the Closing Date:
(i) no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under post-effective amendment to the Securities Act that would prevent its useRegistration Statement, shall have been issued be in effect and no proceedings for that such purpose shall have been instituted or threatened by the SEC; Commission, and the Final Prospectus Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to use of the automatic shelf registration statement form (unless the Shares are duly registered in the manner contemplated by Rule 401(g)(2) to the satisfaction of the Representative prior to the Closing Date);
(ii) the Company shall have been filed the preliminary prospectus and the Prospectus with the SEC pursuant to Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430B, and such post-effective amendment shall have become effective (if not later than automatically effective under the close rules of business on the second business day following Commission);
(iii) the execution and delivery of this Agreement; Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act Act, shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule or, to the extent applicable, under Rule 164(b); and
(iv) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(b) The Company shall have furnished to the Representative the opinion of McGuireWoods LLP, counsel for the Company, dated the Closing Date, to the effect of paragraphs (i) and (v) through (xiii) below, and the opinion of the General Counsel of the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) through (iv) below:
(i) the Company is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware, has the corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and the Prospectus, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the “Principal Subsidiary Bank”) is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) each of the Company and the Principal Subsidiary Bank is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the Company or the Principal Subsidiary Bank, as the case may be, is required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock of the Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and (except as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except as otherwise set forth in the Disclosure Package and the Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors’ qualifying shares) are owned beneficially, directly or indirectly, by Rule 433 the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens or encumbrances;
(iv) such counsel is without knowledge that there is (1) any pending or threatened action, suit or proceeding before or by any court or governmental agency, authority or body, domestic or foreign, or any arbitrator involving the Company or any of its subsidiaries required to be disclosed in the Registration Statement, the Disclosure Package or the Prospectus which is omitted or not adequately disclosed therein, or (2) any franchise, contract or other document required to be described in the Registration Statement, the Disclosure Package or the Prospectus, or to be filed as an exhibit to the Registration Statement, which is not so described or filed as required;
(v) the Deposit Agreement, the Depositary Shares and the Preferred Stock conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Prospectus;
(vi) the Registration Statement became effective under the Securities Act automatically upon its filing; no stop order suspending the effectiveness of the Registration Statement has been issued, and such counsel is without knowledge that any proceeding for that purpose has been instituted or threatened, or that the Company has received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form; and the Registration Statement, the Disclosure Package and the Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements under the Securities Act and the Exchange Act;
(vii) this Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by you, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in this Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and any bank regulatory powers now or hereafter in effect and to the application of principles of public policy;
(viii) no consent, approval, authorization or order of any court or governmental agency or body in the United States is necessary or required on behalf of the Company for the consummation of the transactions contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the blue sky, state securities, insurance or similar laws of the United States in connection with the purchase and distribution of the Depositary Shares by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(ix) the shares of Preferred Stock, and any shares of Preferred Stock as to which the over-allotment option granted in Section 2 of this Agreement has been exercised, have been duly authorized and, when paid for as contemplated herein, will be duly issued, fully paid and nonassessable;
(x) the Depositary Shares, including any Depositary Shares subject to the over-allotment option granted in Section 2 of this Agreement, have been duly and validly authorized for issuance and sale, and, when the Initial Shares and any Option Shares are issued and delivered against payment therefor pursuant to this Agreement, the Depositary Shares will be validly issued and, upon deposit of the Preferred Stock with the Depository pursuant to the Deposit Agreement, and the due execution of the Deposit Agreement and the Depositary Receipts by the Depository, will be entitled to the rights under, and the benefits of, the Deposit Agreement; and all corporate action required to be taken for the authorization, issue and sale of the Depositary Shares has been validly and sufficiently taken and the Depositary Shares represent legal and valid interests in the Preferred Stock;
(xi) neither the issuance and sale of the Preferred Stock or the Depositary Shares, nor the consummation of any other of the transactions herein contemplated or contemplated by the Deposit Agreement nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach of, or constitute a default under (1) the Company’s Amended and Restated Certificate of Incorporation or the Bylaws, as amended to date, (2) the terms of any indenture or other material agreement or instrument known to such counsel and to which the Company or the Principal Subsidiary Bank is a party or bound, or (3) any order, law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Principal Subsidiary Bank;
(xii) the Deposit Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the other parties thereto, constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and any bank regulatory powers now or hereafter in effect and to the application of principles of public policy; and
(xiii) such counsel is without knowledge of any rights to the registration of securities of the Company under the Registration Statement which have not been waived by the holders of such rights or which have not expired by reason of lapse of time following notification of the Company’s intention to file the Registration Statement. In rendering such opinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no view as to portions of the Registration Statement, the Disclosure Package, or the Prospectus consisting of financial statements and other financial, accounting and statistical information and it has not independently verified, is not passing upon and assumes no responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package, or the Prospectus or any amendment or supplement thereto (other than as stated in (v) above), it has no reason to believe that such remaining portions of the Registration Statement or any amendment thereto as of the time it became effective, as of the Initial Sale Time or as of the date of such opinion, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that, subject to the foregoing with respect to financial statements and other financial, accounting and statistical information, the Disclosure Package, taken as a whole, as of the Initial Sale Time, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statement therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, as amended or supplemented, as of its date or as of the date of such opinion contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel also need not pass upon nor assume any responsibility for ascertaining whether or when any of the information contained in each Disclosure Package was conveyed to any purchaser of the Depositary Shares. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of North Carolina, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, upon the opinion of counsel to the Underwriters, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriters; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.
(c) The Representative shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Initial Shares, the Registration Statement, the Disclosure Package and the Prospectus and any other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representative a certificate of the Company, signed by any Senior Vice President or Treasurer or any other authorized officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and this Agreement and they are without knowledge that:
(i) the representations and warranties of the Company in this Agreement are not true and correct with the same force and effect as though expressly made at and as of the Closing Date and the Company has not performed or complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) any stop order suspending the effectiveness of the Registration Statement has been issued or any proceedings for that purpose have been instituted or threatened by the Commission;
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus, there has been any material adverse change or any development involving a prospective material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus; and
(iv) any litigation or proceeding shall be pending to restrain or enjoin the issuance or delivery of the Shares, or which in any way affects the validity of the Shares.
(e) At the time this Agreement is executed, PricewaterhouseCoopers LLP shall have furnished to the Representative a letter or letters (which may refer to letters previously delivered to one or more of the Representative), dated as of the date of this Agreement, in form and substance satisfactory to the Representative, confirming that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) They are an independent registered public accounting firm with respect to the Company within the meaning under the Securities Act and the applicable rules and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (United States).
(ii) In their opinion, the consolidated financial statements of the Company and its subsidiaries audited by them and included or incorporated by re
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof of this Agreement and prior to the Closing Date (including the filing of any document incorporated by reference thereintherein during such period) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate certificates furnished pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No For the period from and after effectiveness of this Agreement and prior to the Closing Date:
(i) no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under post-effective amendment to the Securities Act that would prevent its useRegistration Statement, shall have been issued be in effect and no proceedings for that such purpose shall have been instituted or threatened by the SEC; Commission;
(ii) the Final Prospectus Company shall have been filed the preliminary prospectus and the Prospectus with the SEC pursuant to Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430B, and such post-effective amendment shall have become effective (if not later than automatically effective under the close rules of business on the second business day following Commission);
(iii) the execution and delivery of this Agreement; Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act Act, shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings by under such rule or, to the extent applicable, under Rule 433 164(b) under the Securities Act; and
(iv) The Financial Industry Regulatory Authority, Inc. (“FINRA”) shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements that have not been resolved following good faith discussions between the Company and the applicable Underwriters.
(b) The Company shall have furnished to the Representative the opinion of ▇▇▇▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date, to the effect of paragraphs (i) and (v) through (xv) below, and the opinion of the General Counsel of the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) through (iv) below:
(i) the Company is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware, has the corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and the Prospectus, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the “Principal Subsidiary Bank”) is a national banking association formed under the laws of the United States of America and authorized thereunder to transact the business of banking;
(ii) each of the Company and the Principal Subsidiary Bank is qualified or licensed to do business in each jurisdiction in which such counsel has knowledge that the Company or the Principal Subsidiary Bank, as the case may be, is required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock of the Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and (except as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except as otherwise set forth in the Disclosure Package and the Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors’ qualifying shares) are owned beneficially, directly or indirectly, by the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens or encumbrances with respect thereto;
(iv) such counsel is without knowledge that there is (1) any pending or threatened action, suit or proceeding before or by any court or governmental agency, authority or body, domestic or foreign, or any arbitrator involving the Company or any of its subsidiaries required to be disclosed in the Registration Statement, the Disclosure Package or the Prospectus which is omitted or not adequately disclosed therein, or (2) any contract or other document required to be described in the Registration Statement, the Disclosure Package or the Prospectus, or to be filed as an exhibit to the Registration Statement, which is not so described or filed as required;
(v) the statements made in the Base Prospectus under the headings “Description of Preferred Stock” and “Description of Depositary Shares,” as supplemented, amended and/or superseded by the statements in the final prospectus supplement for the Shares dated the date of this Agreement under the headings “Description of the Preferred Stock” and “Description of the Depositary Shares,” insofar as they purport to constitute summaries of the material terms of the Deposit Agreement, the Depositary Shares and the Preferred Stock, constitute accurate summaries in all material respects;
(vi) the Registration Statement has been declared effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued, and such counsel is without knowledge that any proceeding for that purpose has been instituted or threatened; and the Registration Statement, the Disclosure Package and the Prospectus and each amendment thereof or supplement thereto (other than the financial statements, supporting schedules, footnotes and other financial, accounting and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements under the Securities Act and the Exchange Act;
(vii) this Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by you, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in this Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and any bank regulatory powers now or hereafter in effect and to the application of principles of public policy;
(viii) no consent, approval, authorization, or order of, or qualification with, any governmental body or agency under the General Corporation Law of the State of Delaware or the laws of the State of New York or any federal law of the United States of America that in our experience is normally applicable to general business corporations in relation to transactions of the type contemplated by this Agreement, the Certificate of Designations and the Deposit Agreement, is required for the execution, delivery and performance by the Company of its respective obligations under this Agreement, the Certificate of Designations and the Deposit Agreement, except such as may be required under federal or state securities or Blue Sky laws as to which we express no opinion;
(ix) all corporate action required to be taken for the authorization and issue of the Preferred Stock underlying the Depositary Shares and sale of the Depositary Shares has been, or will be before the Closing Date, validly and sufficiently taken;
(x) the execution and filing of the Certificate of Designation has been duly authorized by the Company and the Certificate of Designation has been duly executed and filed with the Secretary of State of the State of Delaware;
(xi) the shares of Preferred Stock represented by the Depositary Shares have been duly and validly authorized, and, when issued and deposited with the Depository against issuance of the Depositary Shares and the Company has received the consideration therefor pursuant to this Agreement, will be validly issued, fully paid and non-assessable;
(xii) the Company’s deposit of the Preferred Stock in respect of the Depositary Shares in accordance with the Deposit Agreement has been duly authorized and, when the Depositary Shares are issued and delivered in the form of Depositary Receipts pursuant to the Deposit Agreement against payment therefor pursuant to this Agreement, the Depositary Shares will represent legal and valid interests in the Preferred Stock;
(xiii) upon deposit of the Preferred Stock with the Depository pursuant to the Deposit Agreement, and the due execution of the Deposit Agreement and the Depositary Receipts by the Depository, the holders of the Depositary Shares will be entitled to the rights under, and the benefits of, the Deposit Agreement and the Depositary Receipts;
(xiv) none of the issuance and sale of the Preferred Stock or the Depositary Shares, nor the consummation of any other of the transactions herein contemplated or contemplated by the Deposit Agreement and the fulfillment of the terms hereof or thereof will conflict with, result in a breach of, or constitute a default under (1) the Company’s Restated Certificate of Incorporation or Bylaws, each as amended to date, (2) the terms of any indenture or other material agreement or instrument to which the Company or the Principal Subsidiary Bank is a party or bound filed or incorporated by reference as an exhibit to the Registration Statement, or (3) any order, law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any U.S. court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Principal Subsidiary Bank; and
(xv) the Deposit Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the other parties thereto, constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and any bank regulatory powers now or hereafter in effect and to the application of principles of public policy. In rendering such opinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no view as to portions of the Registration Statement, the Disclosure Package, or the Prospectus, including any document incorporated by reference therein, consisting of financial statements, supporting statements, footnotes and other financial, accounting and statistical information or statements in the Disclosure Package or the Prospectus concerning the securities and other commercial laws of countries or jurisdictions other than the United States, and it has not independently verified, is not passing upon and assumes no responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package, or the Prospectus or any amendment or supplement thereto (other than as stated in (v) above), nothing has come to its attention that has caused it to believe that such remaining portions of the Registration Statement or any amendment thereto, insofar as it relates to the offering of the Shares, as of the time it became effective, as of the Initial Sale Time or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that, subject to the foregoing with respect to financial statements, supporting statements, footnotes and other financial, accounting and statistical information, the Disclosure Package, insofar as it relates to the offering of the Shares, taken as a whole, as of the Initial Sale Time, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or that the Prospectus, as of its date or as amended or supplemented as of the date of such opinion, insofar as it relates to the offering of the Shares, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such counsel also need not pass upon nor assume any responsibility for ascertaining whether or when any of the information contained in each Disclosure Package was conveyed to any purchaser of the
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the relevant Closing Date (including the filing of any document incorporated therein by reference therein) reference), as of the Applicable Time and as of the Closing Date or any Additional relevant Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No The Registration Statement has become effective and on the Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued under the Act or proceedings therefor initiated or threatened by the Commission, no notice pursuant to Rule 401(g)(2) of the Regulations shall have been received by the Company and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters. A prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). The Company shall have paid the required Commission filing fees relating to the Securities within the time period required by Rule 456(1)(i) of the Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(b) The Company shall have furnished to the Representatives the opinion of Faegre & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date, to the effect that:
(i) the Company has been duly organized and is validly existing and in good standing under the laws of the State of Delaware; the Company has full corporate power and authority to conduct its business as described in the Registration Statement, the Disclosure Package and the Prospectus;
(ii) the Company’s authorized capitalization is as set forth in the Registration Statement, the Disclosure Package and the Prospectus; and the Securities conform to the descriptions thereof contained in the Disclosure Package and the Prospectus; all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) authorization for listing the Corporate Units and the Issuable Common Stock on the New York Stock Exchange has been given, subject to official notice of issuance and evidence of satisfactory distribution, or the Company has filed a preliminary listing application and all required supporting documents with respect to the Corporate Units and the Issuable Common Stock with the New York Stock Exchange and such counsel has no reason to believe that the Corporate Units and the Issuable Common Stock will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution;
(iv) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act, and constitutes a valid and legally binding instrument, enforceable in accordance with its terms (subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles);
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) the Purchase Contract and Pledge Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles);
(vii) the Remarketing Agreement has been duly authorized, and when executed and delivered by the Company will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles);
(viii) the Debentures have been duly authorized, executed, issued and delivered by the Company and constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture and are enforceable in accordance with their terms (subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles);
(ix) the Securities (other than the Debentures) have been duly authorized and executed by the Company and, when executed on behalf of the holders thereof by the Stock Purchase Contract Agent and authenticated in accordance with the provisions of the Purchase Contract and Pledge Agreement and delivered to and paid for in accordance with the terms of the Underwriting Agreement and the Securities Agreements, will be the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms (subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles);
(x) to the best knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Registration Statement, the Disclosure Package and the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement, the Disclosure Package or the Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required;
(xi) the Registration Statement and any amendments thereto have become effective under the Act; and the Registration Statement, including without limitation the Rule 430B Information, the Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (including without limitation each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2)) (other than the financial statements and the financial and statistical data derived therefrom included therein or incorporated therein by reference, as to which such counsel need express no opinion) complied as to form in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder; and nothing has come to such counsel’s attention which causes such counsel to believe that (A) the Original Registration Statement or any amendment thereof (other than the financial statements, financial data and supporting schedule included or incorporated by reference therein and other than the Form T-1, as to each of which such counsel need express no belief), at the time the Original Registration Statement or any such amendment became effective, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (B) the Registration Statement, including any Rule 430B Information (other than the financial statements, financial data and supporting schedule included or incorporated by reference therein and other than the Form T-1, as to each of which such counsel need express no belief), at the deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the Regulations, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (C) the Prospectus or any amendment or supplement thereto (other than the financial statements, financial data and supporting schedule included or incorporated by reference therein, as to each of which such counsel need express no belief), at the time the Prospectus was issued, at the time any such amendment or supplement thereto was issued or at the Closing Date, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (D) the Disclosure Package (other than the financial statements, financial data and supporting schedule included or incorporated by reference therein, as to each of which such counsel need express no belief), as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading;
(xii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under state securities laws in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(xiii) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach of, or constitute a default under the charter or by-laws of the Company or the terms of any Agreement or Instrument known to such counsel, or any statute or any order, rule or regulation known to such counsel to be applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or any of its subsidiaries;
(xiv) assuming that the Purchase Contract Agent has been duly appointed as the attorney-in-fact of each Holder, then the Purchase Contract and Pledge Agreement creates a valid security interest in favor of The Bank of New York, as collateral agent for the benefit of the Company in that portion of the Collateral (as defined in the Purchase Contract and Pledge Agreement) in which the Holder has rights and a valid security interest may be created under Article 9 of the New York Uniform Commercial Code, which security interest secures the Obligations (as defined in the Purchase Contract and Pledge Agreement);
(xv) each document filed pursuant to the Exchange Act (other than the financial statements and supporting schedules included therein, as to which no opinion need be rendered) and incorporated or deemed to be incorporated by reference in the Prospectus complied when so filed as to form in all material respects with the Exchange Act; and
(xvi) the Company is not, and after receipt of payment for the Securities and the application of the proceeds thereof as contemplated under the caption “Use of Proceeds” in the preliminary prospectus and the Prospectus will not be, an “investment company” within the meaning of Investment Company Act. In addition, such counsel shall state that any required filing of each prospectus relating to the Securities (including the Prospectus) pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) (without reference to Rule 424(b)(8)); any required filing of each Issuer Free Writing Prospectus pursuant to Rule 433 has been made in the manner and within the time period required by Rule 433(d), and to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended from time to timeamended, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, shall have has been issued and no proceedings for that purpose shall have been instituted or threatened by the SEC; the Final Prospectus shall have been filed with the SEC and no notice pursuant to Rule 424(b401(g)(2) under of the Securities Act not later Regulations has been received by the Company. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the close States of business on Minnesota or with respect to its corporation law, Delaware, or the second business day following United States, to the execution extent deemed proper and delivery specified in such opinion, upon the opinion of this Agreementother counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriters; and any material required (B) as to be filed by factual matters, to the extent deemed proper, on certificates of responsible officers of the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the SEC within the applicable time periods prescribed for such filings by Rule 433 under the Securities Actand its subsidiaries and public officials.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Securities (or any Common Shares on to be issued and sold by the Closing Date Company pursuant to Section 13 hereof in lieu thereof), and the Option Shares on any Additional Closing Dateobligations of the Forward Sellers to deliver and sell the Underwritten Securities, as the case may be, will shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, as of the date hereof, herein as of the date of this Agreement, the effectiveness of any amendment to Applicable Time and the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No The Registration Statement has become effective and, on the Closing Date, (i) no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, and no proceedings any request on the part of the Commission for that purpose additional information shall have been instituted or threatened by complied with to the SEC; reasonable satisfaction of counsel to the Final Underwriters, (ii) each preliminary prospectus and the Prospectus containing the Rule 430B Information shall have been filed with the SEC pursuant to Commission in the manner and within the time period required by Rule 424(b) under without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the Securities Act not later than the close requirements of business on the second business day following the execution and delivery of this Agreement; and Rule 430B), (iii) any material required to be filed by the Company pursuant to Rule 433(d) under of the Securities 1933 Act Regulations shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule 433, (iv) the Company shall have paid the required Commission filing fees relating to the Securities within the time period required by Rule 433 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations, and (v) there shall not have come to your attention any facts that would cause you to believe that (a) the Prospectus, at the time it was required to be delivered or made available to purchasers of the Securities or (b) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at such time, not misleading.
(b) At the time of execution of this Agreement, the Underwriters and the Forward Sellers shall have received from PricewaterhouseCoopers llp a letter, addressed to the Underwriters, the Forward Sellers and the Forward Counterparties, dated the date hereof, in form and substance satisfactory to the Underwriters and the Forward Sellers, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters.
(c) On the Closing Date, the Underwriters and the Forward Sellers shall have received from PricewaterhouseCoopers llp a letter, addressed to the Underwriters, the Forward Sellers and the Forward Counterparties, dated the Closing Date, to the effect that such accountants reaffirm, as of the Closing Date, and as though made on the Closing Date, the statements made in the letter furnished by such accountants pursuant to paragraph (b) of this Section 7, except that the specified date will be a date not more than three days prior to the Closing Date.
(d) On the Closing Date (i) there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, any Material Adverse Effect, other than as set forth in the Registration Statement, the General Disclosure Package and the Prospectus, (ii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date, (iii) the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the 1933 Act objecting to the use of the automatic shelf registration statement form, (iv) no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act and no proceeding therefor shall have been instituted or threatened by the Commission and (v) the Underwriters, the Forward Sellers and the Forward Counterparties shall have received on the Closing Date a certificate of the President and Chief Executive Officer of the Company and the Chief Financial Officer or the Chief Accounting Officer of the Company, dated as of the Closing Date, evidencing compliance with the provisions of this subsection (d).
(e) The Underwriters, the Forward Sellers and the Forward Counterparties shall have received certificates, dated the Closing Date, of the President and Chief Executive Officer of the Company and the Chief Financial Officer or the Chief Accounting Officer of the Company, to the effect that the representations and warranties of the Company contained in Section 1 are true and correct with the same force and effect as though expressly made at and as of the Closing Date.
(f) On the Closing Date, the Underwriters and the Forward Sellers shall have received from ▇▇▇▇▇ Day, counsel for the Company, an opinion, addressed to the Underwriters, the Forward Sellers and the Forward Counterparties, dated as of the Closing Date, substantially in the form set forth in Exhibit A hereto and to such further effect as counsel to the Underwriters and counsel to the Forward Sellers may reasonably request.
(g) On the Closing Date, the Underwriters and the Forward Sellers shall have received from Sidley Austin llp, counsel for the Underwriters and counsel for the Forward Sellers, addressed to the Underwriters, the Forward Sellers and the Forward Counterparties, their opinion or opinions dated the Closing Date in form and substance satisfactory to the Underwriters and the Forward Sellers, and the Company shall have furnished to such counsel such documents as they may request for the purpose of enabling them to pass upon such matters. In giving their opinions, Sidley Austin llp may rely as to matters involving the laws of the State of Ohio upon the opinion of ▇▇▇▇▇ Day. ▇▇▇▇▇ Day and Sidley Austin llp may rely (i) as to the qualification of the Company or its subsidiaries to do business in any state or jurisdiction, upon certificates of appropriate government officials, telephonic confirmation by representatives of such states or confirmation from information contained on the websites of such states and (ii) as to matters of fact, upon certificates and written statements of officers and employees of and accountants for the Company or its subsidiaries.
(h) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any nationally recognized statistical rating organization; or
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, the General Disclosure Package and the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) that, in the judgment of the Underwriters, is material and adverse and that makes it, in the judgment of the Underwriters, impracticable to market the Securities Acton the terms and in the manner contemplated in the Registration Statement, the General Disclosure Package and the Prospectus.
(i) At the time of execution of this Agreement, the Underwriters shall have received lock-up agreements substantially in the form of Exhibit B hereto (the “Lock-up Agreements”) from each of the executive officers and directors listed on Schedule III hereto.
(j) The Common Shares reserved for listing upon issuance following Physical Settlement or Net Share Settlement (as each such term is defined in the Forward Agreements) of each Forward Agreement and the Common Shares (if any) to be sold by the Company pursuant to Section 13 hereof shall have been approved for listing on the NYSE, subject only to official notice of issuance.
(k) The Company shall have furnished to the Underwriters and the Forward Sellers, as the case may be, such additional certificates as the Underwriters or the Forward Sellers, as the case may be, may have reasonably requested as to the accuracy, at and as of the Closing Date, of the representations and warranties made herein by them, as to compliance, at and as of the Closing Date, by them with their covenants and agreements herein contained and other provisions hereof to be satisfied at or prior to the Closing Date, and as to other conditions to the obligations of the Underwriters hereunder. If any of the conditions hereinabove provided for in this Section 7 shall not have been satisfied when and as required to be satisfied, this Agreement may be terminated by the Underwriters by notifying the Company of such termination in writing or by telegram at or prior to the Closing Date, but the Underwriters shall be entitled to waive any of such conditions.
Appears in 1 contract
Sources: Underwriting Agreement (Developers Diversified Realty Corp)
Conditions to the Obligations of the Underwriters. The several obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will be hereunder are subject to the accuracy of the representations and warranties on the part of the Company contained herein, as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to the provisions of this Agreement, to the performance and observance by the Company Issuer Trustee and the National Parties of all of its covenants and agreements herein contained their obligations hereunder and to the following additional conditions:
(a) No the Registration Statement shall have become effective, or if a post-effective amendment is required to be filed under the Securities Act, such post-effective amendment shall have become effective, not later than 5:00 P.M., New York City time, on the date of the determination of the public offering price of the Notes and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement or any notice under Rule 401(g)(2) under the Securities Act that would prevent its usepost-effective amendment shall be in effect, shall have been issued and no proceedings for that such purpose shall have been instituted be pending before or threatened by the SECCommission; the Final Prospectus shall have been filed with the SEC Commission pursuant to Rule 424(b) under the Securities Act not later than the close of business on the second business day following the execution and delivery of this Agreement; and any material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the SEC within the applicable time periods period prescribed for such filings filing by Rule 433 the rules and regulations under the Securities Act;
(b) the Representative shall have received on and as of the Closing Date a certificate of an Authorized Person of the Issuer Trustee and each National Party, with specific knowledge about the party's financial matters which certifies as to the matters set forth in Section 4I.(a) and (i) (in the case of the Issuer Trustee) and Section 4II.(b) and (f) (in the case of the National Parties) hereof;
(c) the Representative shall have received letters, dated the date of delivery thereof, of (i) KPMG, LLP (Washington, D.C.), substantially in form and substance satisfactory to the Representative and counsel for the Underwriters, confirming that they are independent public accountants within the meaning of the Securities Act and the applicable Rules and Regulations and stating in effect that they have performed certain specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature set forth in the Registration Statement and the Prospectus (and any amendments and supplements thereto), agrees with the accounting records of the National, excluding any questions of legal interpretation, and (ii) KPMG, LLP (Melbourne, Australia), substantially in form and substance satisfactory to the Representative and counsel for the Underwriters, stating in effect that they have performed certain specified procedures with respect to the Mortgage Loans;
(d) Stroock & Stroock & ▇▇▇▇▇, LLP, counsel to the Underwriters, shall have furnished to the Underwriters their written opinion, dated the Closing Date, with respect to the Registration Statement, the Prospectus and other related matters as the Underwriters may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(e) ▇▇▇▇▇ & Wood LLP, United States counsel for the National Parties, shall have furnished to the Representative their written opinions, dated the Closing Date, substantially in form and substance satisfactory to the Representative, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(f) ▇▇▇▇▇ & ▇▇▇▇ LLP, United States federal income tax counsel for the National Parties, shall have furnished to the Representative their written opinion, dated the Closing Date, substantially in form and substance satisfactory to the Representative, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(g) Mallesons ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Australian counsel for the National Parties, shall have furnished to the Representative their written opinion, dated the Closing Date, substantially in form and substance satisfactory to the Representative, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(h) Mallesons ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Australian tax counsel for the National Parties, shall have furnished to the Representative their written opinion, dated the Closing Date, substantially in form and substance satisfactory to the Representative, and such Australian tax counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(i) ▇▇▇▇▇ ▇▇▇▇▇ York, Australian counsel for the Issuer Trustee and the Security Trustee, shall have furnished to the Representative their written opinion, dated the Closing Date, substantially in form and substance satisfactory to the Representative, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(j) An internal counsel of the National knowledgeable of this transaction shall have furnished to the Representative his written opinion, dated the Closing Date, substantially in form and substance satisfactory to the Representative, and such counsel shall have received such papers and information as he may reasonably request to enable him to pass upon such matters;
(k) Counsel to the Interest Rate Swap Provider and Currency Swap Providers shall have furnished to the Representative their written opinions dated the Closing Date, substantially in form and substance satisfactory to the Representative, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(l) the Representative shall have received a letter or letters from each counsel delivering any written opinion to any Current Rating Agency in connection with the transaction described in this Agreement which opinion is not otherwise described in this Agreement allowing the Representative to rely on such opinion as if it were addressed to the Representative;
(m) the Representative shall have received copies of letters from each of the Current Rating Agencies stating that the Notes have been rated AAA or its equivalent by the Current Rating Agencies;
(n) the Notes shall have been listed on the Luxembourg Stock Exchange and admitted to trading on the Luxembourg Stock Exchange or such other exchange as the parties shall agree upon or the Representative shall be satisfied that such listing will be granted after the Closing Date but in any event, prior to the first Payment Date for the Notes; and
(o) on or prior to the Closing Date the Issuer Trustee and the National Parties shall have furnished to the Representative such further certificates and documents as the Representative shall reasonably request.
Appears in 1 contract
Sources: Underwriting Agreement (Homeside Mortgage Securities Inc /De/)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of Execution Time and the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d), shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement or any notice under Rule 401(g)(2) under the Securities Act that would prevent objecting to its use, use shall have been issued and no proceedings for that purpose shall have been instituted or threatened by the SEC; the Final Prospectus threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) the Registration Statement is an “automatic shelf registration statement” (as defined under Rule 405) that has been filed with the SEC Commission not earlier than three years prior to the date of the Underwriting Agreement; the Indenture has been qualified under the Trust Indenture Act; each Preliminary Prospectus and the Final Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) under the Securities Act not later specified in such opinion on the date specified therein; and no order suspending the effectiveness of the Registration Statement has been issued, no notice of objection of the Commission to the use of such Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or in connection with the offering of the Securities is pending or, to the knowledge of such counsel, threatened by the Commission; and the Registration Statement and the Final Prospectus (other than the close financial statements and other financial information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder.
(ii) each of the Company and the Significant Subsidiaries is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business on as described in the second Disclosure Package and the Final Prospectus, and is duly qualified to do business day following as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except where such failure to be so qualified would not result in a Material Adverse Effect;
(iii) the Securities and the Indenture conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Final Prospectus;
(iv) the Indenture has been duly authorized, executed and delivered, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law);
(v) the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture;
(vi) to such counsel’s knowledge, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property, of a character required to be disclosed pursuant to Item 103 of Regulation S-K in the Company’s periodic reports filed under the Exchange Act which is not adequately disclosed in any Preliminary Prospectus and the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or the Final Prospectus, or to be filed as an exhibit to the Registration Statement, which is not described or filed as required, and to the extent that they constitute matters of law, summaries of legal matters or legal conclusions, the statements set forth in the Preliminary Prospectus and the Final Prospectus under the caption “Certain U.S. Federal Income Tax Considerations” are accurate in all material respects and fairly present the information provided;
(vii) this Agreement has been duly authorized, executed and delivered by the Company;
(viii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Final Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended;
(ix) no consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required to be obtained by the Company in connection with the transactions contemplated herein, except for the registration of the Securities under the Securities Act, the qualification of the Indenture under the Trust Indenture Act and such consents, approvals, authorizations, orders and registrations or qualifications as may be required under the blue sky laws of any United States state jurisdiction or the securities laws of any foreign jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters;
(x) neither the execution and delivery of the Indenture, the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Significant Subsidiary pursuant to, (i) the charter or by-laws of the Company or any Significant Subsidiary, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument known to such counsel to which the Company or any Significant Subsidiary is a party or bound or to which its or their property is subject (except for any such breach, violation or default that could not adversely affect in a material respect the ability of the Company to perform its obligations under this Agreement, or would otherwise be material in the context of the sale of the Securities) or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any Significant Subsidiary or any of their respective properties; and
(xi) to such counsel’s knowledge, no holders of securities of the Company have rights to the registration of such securities under the Registration Statement. Such counsel shall also state that they have participated in conferences with representatives of the Company and with representatives of its independent accountants and counsel at which conferences the contents of the Registration Statement, the Disclosure Package and the Final Prospectus and any amendment and supplement thereto and related matters were discussed and, although such counsel assumes no responsibility for the accuracy, completeness or fairness of the Registration Statement, the Disclosure Package, the Final Prospectus and any amendment or supplement thereto (except as expressly provided above), no facts have come to such counsel’s attention that cause such counsel to believe that (i) at the Effective Date immediately preceding the Execution Time, the Registration Statement contained any untrue statement of a material fact or omitted to state a material fact required to be filed stated therein or necessary to make the statements therein not misleading, (ii) the Disclosure Package, at the Execution Time, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iii) the Final Prospectus or any amendment or supplement thereto, as of its date and the Closing Date, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than, in each case, the financial statements, related schedules and other financial data included or incorporated by reference therein, as to which such counsel need express no belief). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware, the State of New York or the federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are reasonably satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this Section 7(b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, solely in their respective capacities as such, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Company pursuant in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to Rule 433(dbe performed or satisfied at or prior to the Closing Date;
(ii) under no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Final Prospectus and the Disclosure Package (exclusive of any supplements thereto after the Execution Time), there has been no Material Adverse Effect, except as set forth in or contemplated in the Final Prospectus and the Disclosure Package (exclusive of any supplements thereto after the Execution Time).
(e) The Company shall have requested and Deloitte & Touche LLP shall have furnished to the Representatives, at the Execution Time and at the Closing Date, “comfort” letters, dated as of the Execution Time and as of the Closing Date, respectively, in form and substance reasonably satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Securities Act shall and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have been filed audited the consolidated financial information of the Company for the year ended January 3, 2009, in accordance with the SEC within standards of the Public Company Accounting Oversight Board (United States), and stating in effect that:
(i) in their opinion the audited financial statements included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus and reported on by them comply as to form with the applicable time periods prescribed accounting requirements of the Securities Act and the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of their audit of the financial information for the year ended January 3, 2009, the Preliminary Prospectus and the Final Prospectus; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such filings letter; a reading of the minutes of the meetings of the stockholders, directors and audit committee of the Company; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to January 3, 2009, nothing came to their attention which caused them to believe that:
(1) any audited financial statements of the Company included or incorporated by Rule 433 reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus do not comply as to form with applicable accounting requirements of the Securities Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in the annual report on Form 10-K under the Exchange Act; and said audited financial statements are not in conformity with GAAP;
(2) (i) any material modifications should be made to the unaudited financial statements, included in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, for them to be in conformity with GAAP, and (ii) the unaudited financial statements do not comply as to form in all material respects with the applicable accounting requirements of the Securities ActAct and the related rules and regulations adopted by the Commission.
(3) with respect to the period subsequent to July 4, 2009, there were any changes at the “cut-off date” specified therein (which date shall be reasonably satisfactory to the Representatives) in the long-term debt of the Company, in the common stock of the Company or decreases in the stockholders’ equity of the Company or decrease in consolidated net current assets of the Company as compared with the amounts shown on the July 4, 2009 unaudited consolidated balance sheet included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, or for the period from July 4, 2009 to the “cut-off date” specified therein (which date shall be reasonably satisfactory to the Representatives), there were any decreases, as compared with the corresponding period in the preceding year; in consolidated net revenues or in total or per share am
Appears in 1 contract
Sources: Underwriting Agreement (SNAP-ON Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will hereunder shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein, herein as of the date hereof and the Closing Date, to the accuracy of any material statements made in any certificates, opinions, affidavits, written statements or letters furnished to the Representative(s) or to counsel to the Underwriters identified on Schedule I hereto (“Underwriters’ Counsel”) pursuant to the provisions hereof, as to the performance by the Company of its respective obligations hereunder and to each of the date following additional conditions precedent:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filings pursuant to the Rules and Regulations and all filings (including, without limitation, the Term Sheet) required by Rule 433 or Rule 424(b) shall have been made within the periods required by such Rules, and no such filings will have been made without the consent of the Representative(s).
(b) No order suspending the effectiveness of any amendment to the Registration Statement filed after or preventing or suspending the date hereof use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall be in effect and prior no proceedings for such purpose shall be pending before or threatened by the Commission; no notice of objection of the Commission to use the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the Rules and Regulations shall have been received by the Company; and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the Closing Date (including the filing of any document incorporated by reference therein) and as reasonable satisfaction of the Representative(s).
(c) The Company shall have furnished to the Representative(s) the opinion of the Chief Legal Officer, General Counsel or an Associate General Counsel of the Company, addressed to the Underwriters and dated the Closing Date Date, to the effect that:
(i) The Company has been duly incorporated and is validly existing and in good standing as a corporation under the law of the jurisdiction of its incorporation and has full corporate power to conduct the businesses in which it is engaged as described in the Prospectus. Each of the Significant Subsidiaries that is incorporated under the laws of the United States or any Additional Closing DateState or territory thereof (a “Domestic Significant Subsidiary”) is a duly incorporated and validly existing corporation in good standing under the law of its jurisdiction of incorporation, and has full corporate power and authority to conduct its business as described in the Prospectus. Each of the Company and the Domestic Significant Subsidiaries is duly qualified to do business as a foreign corporation, is in good standing in its jurisdiction of incorporation and is duly registered as a broker-dealer, broker, dealer or investment advisor, as the case may be, in each jurisdiction in which the nature of the business conducted by it or in which the ownership or holding by lease of the properties owned or held by it requires such qualification or registration, except for such jurisdictions where the failure to so qualify, to be in good standing or to register would not have a Material Adverse Effect.
(ii) All the outstanding shares of capital stock of the Domestic Significant Subsidiaries have been duly authorized and are validly issued and outstanding and are fully paid and non-assessable and, except for directors’ qualifying shares, are owned by the Company or a subsidiary of the Company free and clear of any claims, liens, encumbrances and security interests.
(iii) The Securities and the Common Stock conform in all material respects to the accuracy descriptions thereof contained in the Prospectus.
(iv) The Company has an authorized capitalization as set forth in the Prospectus, and all of the statements issued shares of capital stock of the Company (including the Securities being delivered on the Closing Date) have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(v) There are no preemptive or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any Securities pursuant to the Company’s officers made charter or by-laws or any agreement or other instrument known to such counsel.
(vi) No consent, approval, authorization, order, registration or qualification of any court or governmental agency or body is required for the execution and delivery of this Agreement and the issuance of the Securities by the Company, the issuance of the Conversion Shares initially issuable by the Company upon conversion of the Securities in any certificate furnished pursuant to accordance with the terms of the Certificate of Designations or compliance by the Company with all of the provisions of this Agreement and the Securities, except for such consents, approvals, authorizations, orders registrations or qualifications as have been obtained under the Securities Act and such as may be required under the Exchange Act under state securities laws and Blue Sky laws of any jurisdiction.
(vii) Such counsel does not know of any contracts or other documents that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Rules and Regulations which have not been filed as exhibits to the Registration Statement or incorporated therein by reference as permitted by the Rules and Regulations.
(viii) Except as described in the Registration Statement, the most recent Preliminary Prospectus and the Prospectus, such counsel does not know of any litigation or any governmental proceeding pending or threatened against the Company or any of its subsidiaries that might reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect or that is required to be disclosed in the Registration Statement, the most recent Preliminary Prospectus and the Prospectus.
(ix) To such counsel’s knowledge, neither the Company nor any of the Domestic Significant Subsidiaries is in violation of its corporate charter or by-laws, nor in default under any agreement, indenture or instrument known to such counsel, which violation or default might reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(x) This Agreement has been duly authorized, executed and delivered by the Company; the execution and delivery of this Agreement, the issuance of the Securities and the Conversion Shares initially issuable by the Company upon conversion of the Securities in accordance with the terms of the Certificate of Designations or compliance by the Company with all of the provisions of this Agreement and the Certificate of Designations will not conflict with, or result in the creation or imposition of any lien, charge or encumbrance upon any of the assets of the Company or the Domestic Significant Subsidiaries pursuant to the terms of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel and to which the Company or the Domestic Significant Subsidiaries is a party or bound, or result in a violation of the corporate charter or by-laws of the Company or the Domestic Significant Subsidiary or any statute, rule, regulation or any order known to such counsel of any court or governmental agency having jurisdiction over the Company, the Domestic Significant Subsidiaries or any of their respective properties, the effect of which conflict, violation or default might reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(xi) The Registration Statement has become effective under the Securities Act, and, to the performance best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and observance no proceeding for that purpose has been instituted or threatened by the Commission, and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the Rules and Regulations has been received by the Company.
(xii) The Registration Statement, the Prospectus and each amendment thereof or supplement thereto (except that no opinion need be expressed as to the financial statements and notes thereto or the schedules or other financial or statistical data included or incorporated by reference therein) comply as to form in all material respects with the requirements of the Securities Act and the Rules and Regulations.
(xiii) The Conversion Shares initially issuable upon conversion of the Securities have been duly reserved for issuance, and such Conversion Shares, when issued in accordance with the terms of the Certificate of Designations, will be validly issued, fully paid and nonassessable.
(xiv) The Company has filed a preliminary listing application and all required supporting documents with respect to the Preferred Stock and the Conversion Shares with the New York Stock Exchange, and such counsel has no reason to believe that the Preferred Stock and the Conversion Shares will not be authorized for listing, subject to official notice of all issuance and evidence of satisfactory distribution. In rendering such opinion, such counsel may rely upon opinions of local counsel satisfactory to the Representative(s) for matters not governed by New York law and may rely as to matters of fact, to the extent he or she deems proper, upon certificates or affidavits of officers of the Company and public officials.
(d) The Representative(s) shall have received from Underwriters’ Counsel such opinion or opinions, dated the day of the Closing Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative(s) may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative(s) a certificate of its covenants Chief Executive Officer, its President, Chief Operating Officer, Chief Administrative Officer, any Executive Vice President, Senior Vice President or Vice President, and agreements herein contained and its Chief Financial Officer, its Treasurer, its Financial Controller or its Global Head of Asset Liability Management (or other officer performing substantially the same function), dated the day of the Closing Date, to the following additional conditionseffect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus and this Agreement, and that, to the best of their knowledge after due inquiry:
(ai) The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(ii) No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, shall have Statement has been issued and no proceedings for that purpose shall have been instituted or threatened by threatened; and no notice of objection of the SEC; Commission to the Final Prospectus shall have been filed with use of the SEC Registration Statement or any post-effective amendment thereto pursuant to Rule 424(b401(g)(2) under of the Securities Act Rules and Regulations has been received by the Company; and
(iii) (w) The Registration Statement does not later than the close contain any untrue statement of business on the second business day following the execution and delivery of this Agreement; and a material fact or omit to state any material fact required to be filed by stated therein or necessary to make the Company pursuant statements therein not misleading, (x) the Pricing Disclosure Package, as of the Applicable Time, did not contain any untrue statement of a material fact or omit to Rule 433(dstate a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (y) the Prospectus did not, as of its date, and does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under the Securities Act shall have been filed with the SEC within which they were made, not misleading, and (z) since the applicable time periods prescribed for such filings by Rule 433 under Effective Date of the Securities ActRegistration Statement there has not occurred any event required to be set forth in an amended or supplemented Prospectus which has not been so set forth.
Appears in 1 contract
Sources: Underwriting Agreement (Lehman Brothers Holdings Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date Securities and the Option Shares on any Additional Closing DateSecurities, as the case may be, will shall be subject to the accuracy of the representations and warranties (in each case, subject to the qualifications, if any, described therein) on the part of the Company and the Operating Partnership contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to Applicable Time, the Closing Date (including the filing and each Date of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing DateDelivery, as the case may beif any, and pursuant to Section 3 hereof, to the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No On the Closing Date, (i) the Registration Statement has become effective and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, Statement shall have been issued and no under the 1933 Act or proceedings for that purpose shall have been instituted therefor initiated or threatened by the SEC; Commission, and any request on the Final part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters, (ii) each preliminary prospectus and the Prospectus shall have been filed with the SEC pursuant to Commission in the manner and within the time period required by Rule 424(b) under without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the Securities Act not later than requirements of Rule 430B), and no order preventing or suspending the close use of business on any preliminary prospectus or the second business day following Prospectus shall have been issued by the execution and delivery Commission or the securities authority of this Agreement; and any jurisdiction, (iii) any material required to be filed by the Company pursuant to Rule 433(d) under of the Securities 1933 Act Regulations shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule 433, and (iv) there shall not have come to the attention of the Representative any facts that would cause the Representative to believe, after consultation with counsel, that the General Disclosure Package or the Prospectus, at the time it was, or was required to be, delivered or made available to purchasers of the Securities, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representative their opinion, dated the Closing Date (or the applicable Date of Delivery, as the case may be) and addressed to the Representative, to the matters attached as Exhibit A hereto. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware (to the extent limited to Delaware corporate laws) or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. Such opinion shall also cover any amendments or supplements thereto at the Closing Date (or the applicable Date of Delivery, as the case may be). The Underwriters acknowledge that the law firm of ▇▇▇▇▇▇▇ LLP, special Maryland counsel to the Company, is satisfactory for the purposes of this Section 6(b). In addition, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall state that, although such counsel has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the General Disclosure Package or the Prospectus, no facts have come to such counsel’s attention that have caused such counsel to believe that (i) the Registration Statement, as of its most recent effective date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or, (ii) the General Disclosure Package, at the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus, or any amendment or supplement thereto, as of their respective issue dates or at the Closing Date or the applicable Date of Delivery, as the case may be, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements, schedules and other financial or accounting data or information included or incorporated by reference therein or excluded therefrom, as to which such counsel need express no statement).
(c) The Representative shall have received the favorable opinion, dated the Closing Date (or the applicable Date of Delivery, as the case may be), of ▇▇▇▇▇▇▇ LLP, special Maryland counsel of the Company, to the matters attached as Exhibit B hereto.
(d) The Representative shall have received from Sidley Austin LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date (or the applicable Date of Delivery, as the case may be) and addressed to the Representative, with respect to the issuance and sale of the Securities, the disclosure in the Registration Statement, the General Disclosure Package and the Prospectus and other related matters as the Representative may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. In rendering such opinion, such counsel may rely, as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of responsible officers of the Company and public officials. In addition, in rendering such opinion, such counsel may rely on and assume the accuracy of the opinion of ▇▇▇▇▇▇▇ LLP, special Maryland counsel to the Company, dated as of the Closing Date (or the applicable Date of Delivery, as the case may be), with respect to matters of Maryland law.
(e) The Underwriters shall have received a certificate of the president or an executive vice president of the Company, on behalf of the Company and as sole stockholder of Education Realty OP GP, Inc. (general partner of the Operating Partnership), and of the chief financial officer or chief accounting officer of the Company, on behalf of the Company and as sole stockholder of Education Realty OP GP, Inc. (general partner of the Operating Partnership), dated the Closing Date (or the applicable Date of Delivery, as the case may be), to the effect that the signers of such certificate have carefully examined the Registration Statement, the General Disclosure Package and the Prospectus and any amendments or supplements to the foregoing, as well as this Agreement, and that:
(i) the representations and warranties (in each case, subject to the qualifications, if any, described therein) of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date (or the applicable Date of Delivery, as the case may be) with the same effect as if made on the Closing Date (or such Date of Delivery, as the case may be) and the Company and the Operating Partnership have complied with all the agreements and satisfied all the conditions on their part to be performed or satisfied at or prior to the Closing Date (or such Date of Delivery, as the case may be);
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or, to the Company’s knowledge, are threatened by the Commission, and no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued by the Commission or the securities authority of any jurisdiction; and
(iii) since the date of the most recent financial statements included or incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse effect on the condition (financial or otherwise), business, earnings, properties, assets or prospects of the Company or the Operating Partnership and the Subsidiaries, taken as a whole, except as set forth in or contemplated in the Registration Statement, the General Disclosure Package and the Prospectus (excluding any documents incorporated or deemed to be incorporated by reference therein after the date hereof).
(f) The Representative shall have received a certificate of the chief financial officer of the Company, dated the Closing Date (or the applicable Date of Delivery, as the case may be), in a form reasonably satisfactory to the Representative.
(g) At the date hereof, the Representative shall have received a letter from Deloitte & Touche LLP dated such date, in form and substance reasonably satisfactory to the Representative, together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information relating to the Company contained in the Registration Statement, the General Disclosure Package and the Prospectus.
(h) On the Closing Date (or the applicable Date of Delivery, as the case may be), the Representative shall have received a letter, dated the Closing Date (or such Date of Delivery, as the case may be), of Deloitte & Touche LLP, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (g) of this Section 6, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date (or such Date of Delivery, as the case may be).
(i) Subsequent to the date hereof or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there shall not have been (i) any change or decrease specified in the letter referred to in Section 6(g) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business, assets, prospects or properties of the Company or the Operating Partnership and the Subsidiaries taken as a whole, except as set forth in or contemplated in the Registration Statement, the General Disclosure Package and the Prospectus, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus, (iii) any downgrading in, or withdrawal of, the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 433 436(g) under the 1933 Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating), (iv) any suspension or material limitation by the Commission of trading in the Common Stock or trading in securities generally on the NYSE or any setting of minimum or maximum prices on such exchange, or maximum ranges of prices have been required, by such exchange or by such system or by order of the Commission, FINRA or any other governmental authority, (v) any banking moratorium declared either by federal or New York State authorities or (vi) any outbreak or significant escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis or any significant change in national or international political, financial or economic condition, the effect of which on financial markets is such as to make it, in the judgment of the Representative, impractical or inadvisable to proceed with the offering or delivery of the Securities Actas contemplated by the General Disclosure Package and the Prospectus.
(j) On or prior to the Closing Date, the Representative shall have received lock-up agreements substantially in the form of Exhibit C hereto (the “Lock-up Agreements”) from each of the executive officers and directors listed on Schedule III hereof.
(k) On the Closing Date, the Securities shall have been approved for listing on the NYSE, subject only to official notice of issuance.
(l) On the Closing Date (or the applicable Date of Delivery, as the case may be), counsel for the Underwriters shall have been furnished with such other documents as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company or the Operating Partnership in connection with the issuance and sale of the Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters.
(m) Prior to the Closing Date (or the applicable Date of Delivery, as the case may be), the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request. Any certificate or document signed by any officer or representative of the Company or the Operating Partnership and delivered to any Underwriter, or to counsel for the Underwriters, shall be deemed a representation and warranty by each of the Company and the Operating Partnership, as to matters set forth therein, to each Underwriter as to the statements made therein. The Representative may in its sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the Closing Date (or the applicable Date of Delivery, as the case may be) or otherwise. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative, this Agreement and all obligations of the Underwriters hereunder may be terminated at, or at any time prior to, the Closing Date or the applicable Date of Delivery, as the case may be, by the Representative, and such termination shall be without liability of any party to any other party except as provided in Section 7 hereof and except that Sections 1 and 8 hereof shall survive any such termination and remain in full force and effect. Notice of such termination shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the offices of Sidley Austin LLP, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on the Closing Date (or the applicable Date of Delivery, as the case may be).
Appears in 1 contract
Sources: Underwriting Agreement (Education Realty Trust, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Corporation contained herein, herein as of the date hereof, as of Execution Time and the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Corporation made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all Corporation of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No If filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(a) hereof, any other material required to be filed by the Corporation pursuant to Rule 433(d) shall have been filed in the manner and within the time period required by Rule 433 and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened threatened.
(b) The Corporation shall have furnished to the Representatives the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., Managing Chief Counsel and Corporate Secretary of the Corporation, dated the Closing Date (which opinion may be relied upon by Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Underwriters, as to matters of Pennsylvania law), to the effect that:
(i) the Corporation is a corporation duly incorporated and is presently subsisting as a corporation under the laws of the Commonwealth of Pennsylvania with all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, except for such power and authority the absence of which would not have a material adverse effect on the Corporation and its consolidated subsidiaries taken as a whole, or materially and adversely affect its ability to perform its obligations under this Agreement, the Deposit Agreement and the Securities; and the Corporation is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended;
(ii) PNC Bank is validly organized and existing as a national banking association in good standing under the laws of the United States, with all requisite power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, except for such power and authority the absence of which would not have a material adverse effect on PNC Bank;
(iii) The shares of Preferred Stock represented by the SECDepositary Shares being delivered to the Underwriters at the Closing Date have been duly authorized and, when issued and delivered as provided in this Agreement, will be duly and validly issued, fully paid and nonassessable, and will have the rights set forth in the Corporation’s Articles of Incorporation, as amended to the Closing Date;
(iv) The Depositary Shares being delivered to the Underwriters at the Closing Date have been duly authorized and, when issued and delivered against payment therefor as provided in this Agreement, will be duly and validly issued and will be entitled to the rights under, and the benefits of, the Deposit Agreement;
(v) all the outstanding shares of capital stock of PNC Bank have been duly and validly authorized and issued and (except as provided in 12 U.S.C. § 55) are fully paid and nonassessable, and all outstanding shares of capital stock of PNC Bank are owned by the Corporation either directly or through wholly owned subsidiaries of the Corporation free and clear of any perfected security interest and, to the knowledge of such counsel after due inquiry, any other security interests, claims, liens or encumbrances;
(vi) the Corporation’s authorized equity capitalization, if set forth in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, is as set forth in the Final Prospectus; the Securities conform in all material respects to the description thereof contained in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus; and, if the Securities are to be listed on any stock exchange, authorization therefor has been given, subject to official notice of issuance and evidence of satisfactory distribution, or the Corporation has filed a preliminary listing application and all required supporting documents with respect to the Securities with such stock exchange and nothing has caused such counsel to believe that the Securities will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution and the satisfaction of other requirements which counsel reasonably believes will be satisfied in due course;
(vii) this Agreement has been duly authorized, executed and delivered by the Corporation;
(viii) the issuance and sale of the Securities and the execution, delivery and performance by the Corporation of this Agreement and the Deposit Agreement, and the consummation of any other transaction herein contemplated will not (A) violate the Articles of Incorporation or By-laws of the Corporation or PNC Bank or (B) violate, result in a breach of, or constitute a default under the terms of any material indenture or other material agreement or instrument known to such counsel to which the Corporation or PNC Bank is a party or bound or (C) violate any material order or regulation known to such counsel to be applicable to the Corporation or PNC Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Corporation;
(ix) to the best knowledge of such counsel, there are no actions, suits, investigations or proceedings pending or threatened against the Corporation or PNC Bank in any court or before or by an arbitrator or governmental authority of a character required to be disclosed in the Registration Statement which are not disclosed in the Pricing Disclosure Package and the Final Prospectus, and to the best of such counsel’s knowledge, there is no franchise, contract or other document of a character required to be described in the Registration Statement, the Pricing Disclosure Package or the Final Prospectus, or to be filed as an exhibit, which is not described or filed as required; and the statements included or incorporated in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus shall have been filed with describing any legal proceedings or material contracts or agreements relating to the SEC Corporation or any of its subsidiaries fairly summarize such matters in all material respects;
(x) the Registration Statement has become effective under the Act; any required filing of the Basic Prospectus, any Preliminary Final Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) under has been made in the Securities Act not later than manner and within the close time period required by Rule 424(b); any required filing of business on the second business day following the execution and delivery of this Agreement; and any material required to be filed by the Company Issuer Free Writing Prospectus pursuant to Rule 433(d) has been made in the manner and within the time period required by Rule 433; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued, no proceedings for that purpose have been instituted or threatened, and the Registration Statement, the Pricing Disclosure Package and the Final Prospectus and each amendment thereof or supplement thereto made by the Corporation prior to the date of such opinion as of their respective issue dates (other than the financial statements and other financial information contained or incorporated therein, and that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification of Trustee (Form T-1) under the Trust Indenture Act, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of that Act and the Exchange Act and the respective rules and regulations thereunder; and nothing has come to the attention of such counsel that has caused such counsel to believe that at the Effective Date the Registration Statement contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; that the Pricing Disclosure Package as of the Applicable Time contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading or that the Final Prospectus as of its date and as of the Closing Date included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading except that such counsel does not express any opinion or belief as to (a) the financial statements or schedules or other data of a financial nature included or incorporated therein, (b) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification of Trustee (Form T-1) under the Trust Indenture Act, and (c) regulatory actions of the applicable regulatory authorities that are not otherwise disclosed by such regulatory authorities. In connection with the foregoing, the Underwriters acknowledge and understand that the character of determinations involved in the process of preparing the Registration Statement and the Final Prospectus (including any documents incorporated by reference) are such that such counsel need not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Final Prospectus (including any documents incorporated by reference) except as expressly set forth herein;
(xi) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities Act by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(xii) the Corporation is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, will not be an “investment company” or an entity “controlled” by an “investment company”, as such terms are defined in the Investment Company Act;
(xiii) no holders of securities of the Corporation have rights to the registration of such securities under the Registration Statement;
(xiv) the statements set forth in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus under the captions “Description of Preferred Stock” and “Description of Depositary Shares”, insofar as they purport to describe the provisions of the laws and documents referred to therein, fairly summarize in all material respects the matters described therein; and
(xv) the Deposit Agreement has been duly authorized, executed and delivered by the Corporation, and constitutes a legal, valid and binding obligation of the Corporation, enforceable against the Corporation in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, receivership, readjustment of debt, moratorium, fraudulent conveyance or similar laws relating to or affecting creditors’ rights generally, or general equity principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing). In rendering such opinion, such counsel will opine only as to matters involving the application of the laws of the Commonwealth of Pennsylvania or the United States and may rely (A) as to matters involving the application of laws of any jurisdiction other than the Commonwealth of Pennsylvania or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are reasonably satisfactory to counsel for the Underwriters, except that it will not be required that such counsel obtain an opinion of New York counsel as to matters of New York law in order to render such opinion or that such counsel express an opinion as to matters arising under the laws of any jurisdiction other than the laws of the Commonwealth of Pennsylvania and matters of federal law arising under the laws of the United States of America, and (B) as to matters of fact, to the extent deemed proper, on certificates or representations of responsible officers of the Corporation and public officials. References to the Final Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have been filed received an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Corporation, dated the Closing Date, substantially to the effect that:
(i) the discussion set forth in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus under the caption “Certain U.S. Federal Income Tax Considerations”, in so far as it relates to matters of U.S. federal income tax laws, subject to the qualifications, exceptions, assumptions and limitations described therein, fairly summarizes in all material respects the matters set forth therein.
(d) The Representatives shall have received from Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Underwriters, an opinion and disclosure letter, dated the Closing Date, with respect to the issuance and sale of the Securities and other related matters as the Representatives may reasonably require, and the Corporation shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Corporation shall have furnished to the Representatives a certificate of the Corporation, signed by the Chairman of the Board, the President, a Vice Chairman of the Board or any Executive Vice President, Senior Vice President, Vice President or Assistant Vice President and the principal financial or accounting officer of the Corporation, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Pricing Disclosure Package, the Final Prospectus, any supplement to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Corporation in this Agreement are true and correct on and as of the Closing Date, with the SEC within same effect as if made on the applicable time periods prescribed Closing Date, and the Corporation has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for such filings that purpose have been instituted or, to the Corporation’s knowledge, threatened; and
(iii) since the date of the most recent consolidated financial statements included or incorporated by Rule 433 under reference in the Securities Act.Registration Statement, the Pricing Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), (i) there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Corporation and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, (ii) the Corporation and its subsidiaries have not incurred any liability or obligation that is material to the Corporation and its subsidiaries, taken as a whole, and (iii) the Corporation has not purchased any of its outstanding capital stock except pursuant to its employee benefit plans in the ordinary course of business, and has not declared, paid or otherwise made any dividend or distribution of any kind of its capital stock other
Appears in 1 contract
Sources: Underwriting Agreement (PNC Financial Services Group, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate certificates furnished pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No For the period from and after effectiveness of this Agreement and prior to the Closing Date:
(i) no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under post-effective amendment to the Securities Act that would prevent its useRegistration Statement, shall have been issued be in effect and no proceedings for that such purpose shall have been instituted or threatened by the SEC; Commission, and the Final Prospectus Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to use of the automatic shelf registration statement form (unless the Shares are duly registered in the manner contemplated by Rule 401(g)(2) to the satisfaction of the Representative prior to the Closing Date);
(ii) the Company shall have been filed the preliminary prospectus and the Prospectus with the SEC pursuant to Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430B, and such post-effective amendment shall have become effective (if not later than automatically effective under the close rules of business on the second business day following Commission);
(iii) the execution and delivery of this Agreement; Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act Act, shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule or, to the extent applicable, under Rule 164(b); and
(iv) the Financial Industry Regulatory Authority, Inc. (“FINRA”) shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(b) The Company shall have furnished to the Representative the opinion of McGuireWoods LLP, counsel for the Company, dated the Closing Date, to the effect of paragraphs (i) and (v) through (xiii) below, and the opinion of the General Counsel of the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) through (iv) below:
(i) the Company is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware, has the corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and the Prospectus, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the “Principal Subsidiary Bank”) is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) each of the Company and the Principal Subsidiary Bank is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the Company or the Principal Subsidiary Bank, as the case may be, is required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock of the Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and (except as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except as otherwise set forth in the Disclosure Package and the Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors’ qualifying shares) are owned, directly or indirectly, by Rule 433 the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens or encumbrances;
(iv) such counsel is without knowledge that there is (1) any pending or threatened action, suit or proceeding before or by any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement, the Disclosure Package or the Prospectus which is omitted or not adequately disclosed therein, or (2) any franchise, contract or other document of a character required to be described in the Registration Statement, the Disclosure Package or the Prospectus, or to be filed as an exhibit to the Registration Statement, is not so described or filed as required;
(v) the Deposit Agreement, the Depositary Shares and the Preferred Stock conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Prospectus;
(vi) the Registration Statement became effective under the Securities Act automatically upon its filing; no stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment to the Registration Statement, has been issued, and such counsel is without knowledge that any proceeding for that purpose has been instituted or threatened, or that the Company has received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form; and the Registration Statement, the Disclosure Package and the Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements under the Securities Act and the Exchange Act;
(vii) this Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by you, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in this Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and similar bank regulatory powers and to the application of principles of public policy;
(viii) no consent, approval, authorization or order of any court or governmental agency or body in the United States is necessary or required on behalf of the Company for the consummation of the transactions contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the blue sky, state securities or insurance or similar laws of the United States in connection with the purchase and distribution of the Depositary Shares by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(ix) the shares of Preferred Stock have been duly authorized and, when paid for as contemplated herein, will be duly issued, fully paid and nonassessable;
(x) the Depositary Shares have been duly and validly authorized for issuance and sale, and, when issued and delivered against payment therefor pursuant to this Agreement, the Depositary Shares will be duly and validly issued and fully paid and non-assessable; and all corporate action required to be taken for the authorization, issue and sale of the Depositary Shares has been validly and sufficiently taken and the Depositary Shares represent legal and valid interests in the Preferred Stock;
(xi) neither the issuance and sale of the Preferred Stock or the Depositary Shares, nor the consummation of any other of the transactions herein contemplated or contemplated by the Deposit Agreement nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach of, or constitute a default under (1) the certificate of incorporation or by-laws of the Company, each as amended to date, (2) the terms of any indenture or other material agreement or instrument known to such counsel and to which the Company or the Principal Subsidiary Bank is a party or bound, or (3) any order, law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Principal Subsidiary Bank;
(xii) the Deposit Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the other parties thereto, constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and similar bank regulatory powers and to the application of principles of public policy; and
(xiii) such counsel is without knowledge of any rights to the registration of securities of the Company under the Registration Statement which have not been waived by the holders of such rights or which have not expired by reason of lapse of time following notification of the Company’s intention to file the Registration Statement. In rendering such opinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no view as to portions of the Registration Statement, the Disclosure Package, or the Prospectus consisting of financial statements and other financial, accounting and statistical information and it has not independently verified, is not passing upon and assumes no responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package, or the Prospectus or any amendment or supplement thereto (other than as stated in (v) above), it has no reason to believe that such remaining portions of the Registration Statement or any amendment thereto as of the time it became effective, as of the Initial Sale Time or as of the date of such opinion, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that, subject to the foregoing with respect to financial statements and other financial, accounting and statistical information, the Disclosure Package, taken as a whole, as of the Initial Sale Time, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statement therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, as amended or supplemented, as of its date or as of the date of such opinion contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel also need not pass upon nor assume any responsibility for ascertaining whether or when any of the information contained in each Disclosure Package was conveyed to any purchaser of the Depositary Shares. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of North Carolina, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, upon the opinion of counsel to the Underwriters, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriters; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.
(c) The Representative shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package and the Prospectus and any other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representative a certificate of the Company, signed by any Senior Vice President or Treasurer or any other authorized officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and this Agreement and they are without knowledge that:
(i) the representations and warranties of the Company in this Agreement are not true and correct with the same force and effect as though expressly made at and as of the Closing Date and the Company has not performed or complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) any stop order suspending the effectiveness of the Registration Statement has been issued or any proceedings for that purpose have been instituted or threatened by the Commission; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus, there has been any material adverse change or any development involving a prospective material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(e) At the time this Agreement is executed, PricewaterhouseCoopers LLP shall have furnished to the Representative a letter or letters (which may refer to letters previously delivered to one or more of the Representative), dated as of the date of this Agreement, in form and substance satisfactory to the Representative, confirming that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) They are an independent registered public accounting firm with respect to the Company within the meaning under the Securities Act and the applicable rules and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (United States).
(ii) In their opinion, the consolidated financial statements of the Company and its subsidiaries audited by them and included or incorporated by reference in the Registration Statement, the preliminary prospectus and the Prospectus comply as to form in all material respects with the applicable accounting requirements under the Securities Act and the Exchange Act and the related rules and regulations adopted by the Commission.
(iii) On the basis of procedures (but not an audit in accordance with generally accepted auditing standards) consisting of:
(a) Reading the minutes of the meetings of the stockholders, the board of directors, executive committee and audit committee of the Company and the boards of directors of the Principal Subsidiary Bank as set forth in the minute books t
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date Securities and the Option Shares on any Additional Closing DateSecurities, as the case may be, will shall be subject to the accuracy of the representations and warranties on the part of the Company Transaction Entities contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to Applicable Time, the Closing Date (including the filing and each Date of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing DateDelivery, as the case may beif any, and pursuant to Section 3 hereof, to the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No On the Closing Date, (i) the Registration Statement shall have been filed by the Company with the Commission not earlier than three years prior to the date hereof and became effective upon filing in accordance with Rule 462(e) of the 1933 Act Regulations and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, Statement shall have been issued and no under the 1933 Act or proceedings for that purpose shall have been instituted therefor initiated or threatened by the SEC; Commission, and any request on the Final part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters, and no notice of objection of the Commission to the use of such form of registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the 1933 Act Regulations has been received by the Company, (ii) each preliminary prospectus and the Prospectus shall have been filed with the SEC pursuant to Commission in the manner and within the time period required by Rule 424(b) under without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the Securities Act not later than requirements of Rule 430B), and no order preventing or suspending the close use of business on any preliminary prospectus or the second business day following Prospectus shall have been issued by the execution and delivery Commission or the securities authority of this Agreement; and any jurisdiction, (iii) any material required to be filed by the Company pursuant to Rule 433(d) under of the Securities 1933 Act Regulations shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule 433, (iv) the Company shall have paid the required Commission filing fees relating to the Firm Securities within the time period required by Rule 433 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b), and (v) there shall not have come to your attention any facts that would cause you to believe that the General Disclosure Package or the Prospectus, at the time it was, or was required to be, delivered or made available to purchasers of the Securities, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading.
(b) The Company shall have requested and caused ▇▇▇▇▇ Lord LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date (or the applicable Date of Delivery, as the case may be) and addressed to the Representatives, to the matters attached as Exhibit A hereto. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the States of Texas, New York, Maryland or Delaware (to the extent limited to Delaware corporate laws) or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company or the general partner of the Operating Partnership and public officials. Such opinion shall also cover any amendments or supplements thereto at the Closing Date (or the applicable Date of Delivery, as the case may be). In addition, ▇▇▇▇▇ Lord LLP shall state that, although such counsel has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the General Disclosure Package or the Prospectus, no facts have come to such counsel’s attention that have caused such counsel to believe that (i) the Registration Statement or any amendment thereto, at the time of filing of the Company’s Annual Report or as of the “new effective date” with respect to the Underwriters and the Securities pursuant to, and within the meaning of, Rule 430B(f)(2), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus, or any amendment or supplement thereto, as of their respective issue dates or at the Closing Date or the applicable Date of Delivery, as the case may be, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements, related notes and schedules and other financial information included or incorporated by reference therein or omitted therefrom, as to which such counsel need express no statement). With respect to statements contained in the General Disclosure Package, any statement contained in any of the constituent documents shall be deemed to be modified or superseded to the extent that any information contained in subsequent constituent documents modifies or replaces such statement.
(c) The Representatives shall have received from Sidley Austin LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date (or the applicable Date of Delivery, as the case may be) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the disclosure in the Registration Statement, the General Disclosure Package and the Prospectus and other related matters as the Representatives may reasonably require, and the Transaction Entities shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. In rendering such opinion, such counsel may rely, as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of responsible officers of the Company or the general partner of the Operating Partnership and public officials. In addition, in rendering such opinion, such counsel may rely on and assume the accuracy of an opinion of ▇▇▇▇▇ Lord LLP, counsel for the Company, dated as of the Closing Date (or the applicable Date of Delivery, as the case may be), with respect to matters of Maryland law.
(d) Each of the Company and the Operating Partnership shall have furnished to the Representatives a certificate, signed by the Chairman of the Board or President and the principal financial or accounting officer of the Company on behalf of the Company and ACCHL, for itself and as general partner of the Operating Partnership, respectively, dated the Closing Date (or the applicable Date of Delivery, as the case may be), to the effect that the signers of such certificate have carefully examined the Registration Statement, the General Disclosure Package and the Prospectus and any amendments or supplements to the foregoing, as well as this Agreement, and that:
(i) the representations and warranties of the Transaction Entities in this Agreement are true and correct on and as of the Closing Date (or the applicable Date of Delivery, as the case may be) with the same effect as if made on the Closing Date (or such Date of Delivery, as the case may be) and the Transaction Entities have complied with all the agreements and satisfied all the conditions on their part to be performed or satisfied at or prior to the Closing Date (or such Date of Delivery, as the case may be);
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or, to the Company’s knowledge, are threatened by the Commission, no notice of objection of the Commission to the use of such form of registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the 1933 Act Regulations has been received by the Company and no order preventing or suspending the use of any preliminary prospectus or the Prospectus shall have been issued by the Commission or the securities authority of any jurisdiction; and
(iii) since the date of the most recent financial statements included or incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus (for the avoidance of doubt, exclusive of any amendment or supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), business, earnings, properties, assets or prospects of the Transaction Entities and the 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 General Disclosure Package and the Prospectus (for the avoidance of doubt, exclusive of any amendment or supplement thereto).
(e) At the date hereof, the Representatives shall have received a letter from Ernst & Young LLP dated such date, in form and substance reasonably satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus.
(f) On the Closing Date (or the applicable Date of Delivery, as the case may be), the Representatives shall have received a letter, dated the Closing Date (or such Date of Delivery, as the case may be), from Ernst & Young LLP to the effect that they reaffirm the statements made in the applicable letter furnished pursuant to subsection (e) of this Section 6, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date (or such Date of Delivery, as the case may be).
(g) Subsequent to the date hereof or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(e) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business, assets, prospects or properties of the Transaction Entities and the 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 General Disclosure Package and the Prospectus, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus (for the avoidance of doubt, exclusive of any amendment or supplement thereto), (iii) any downgrading in, or withdrawal of, the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 1933 Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating), (iv) any suspension or material limitation by the Commission of trading in the Common Stock or trading in securities generally on the NYSE or any setting of minimum or maximum prices on such Exchange, or maximum ranges of prices have been required, by such Exchange or by such system or by order of the Commission, FINRA or any other governmental authority, (v) any banking moratorium declared either by Federal or New York State authorities, (vi) any outbreak or significant escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis or any significant change in national or international political, financial or economic condition, the effect of which on financial markets is such as to make it, in the judgment of the Representatives, impractical or inadvisable to proceed with the offering or delivery of the Securities Actas contemplated by the General Disclosure Package and the Prospectus (for the avoidance of doubt, exclusive of any amendment or supplement thereto) or (vii) the enactment, publication, decree or other promulgation of any statute, regulation, rule or order of any court or other governmental authority which in the Representatives’ opinion materially and adversely affects or may materially and adversely affect the business or operations of the Company.
(h) On or prior to the Closing Date, the Representatives shall have received lock-up agreements substantially in the form of Exhibit B hereto (the “Lock-up Agreements”) from each of the executive officers and directors listed on Schedule III hereof.
(i) On the Closing Date, the Securities shall have been approved for listing on the NYSE, subject only to official notice of issuance.
(j) On the Closing Date (or the applicable Date of Delivery, as the case may be), counsel for the Underwriters shall have been furnished with such other documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Transaction Entities in connection with the issuance and sale of the Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters.
(k) Prior to the Closing Date (or the applicable Date of Delivery, as the case may be), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. Any certificate or document signed by any officer or representative of the Transaction Entities and delivered to the Underwriters, or to counsel for the Underwriters, shall be deemed a representation and warranty by each of the Transaction Entities to the Underwriters as to the statements made therein. The Transaction Entities will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the Closing Date (or the applicable Date of Delivery, as the case may be) or otherwise. If any of the conditions specified in this Section 6 sha
Appears in 1 contract
Sources: Underwriting Agreement (American Campus Communities Operating Partnership LP)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date Units described in Sections 2(a) and the Option Shares on any Additional Closing Date, as the case may be, will 2(b) hereof shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereofExecution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date and (including in the filing case of any document incorporated by reference therein) and as of Units delivered after the Closing Date or any Additional Closing Date, as the case may beany settlement date pursuant to Section 3(b) hereof), and to (ii) the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates delivered pursuant to the provisions of this Agreementhereof, to (iii) the performance and observance by the Company of all of its covenants obligations hereunder, and agreements herein contained and to (iv) the following additional conditions:
(a) No The Registration Statement shall have become effective (or, if a post-effective amendment is required to be filed pursuant to Rule 430A under the Act, such post-effective amendment shall become effective) not later than 5:00 p.m. Eastern Standard Time, on the execution date hereof or at such later date and time as the Representative may approve in writing and, at the Closing Date (and any settlement date pursuant to Section 3(b) hereof), no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, qualification in any jurisdiction shall have been issued and no proceedings for that purpose shall have been instituted or initiated or, to the best knowledge of the Company, threatened by the SEC; the Final Prospectus Commission.
(b) The Company shall have been filed with furnished to the SEC Representative the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, P. C., counsel for the Company, addressed to the Underwriters and dated the Closing Date (and any settlement date pursuant to Section 3(b) hereof), or other evidence satisfactory to the Representative to the effect that:
(i) The Registration Statement has become effective under the Act; any required filing of the Prospectus or any supplements thereto pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any qualification in any jurisdiction has been issued and no proceedings for that purpose have been instituted or threatened; any request from the Commission for additional information has been complied with; the Registration Statement and the Prospectus (and any supplements thereto) comply as to form in all material respects with the applicable requirements of the Act and the rules and regulations thereunder (except that such counsel need express no opinion with respect to the Financial Statements and schedules included in the Registration Statement and Prospectus).
(ii) The Company does not own or control, directly or indirectly, any corporation, partnership, association or other entity.
(iii) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and corporate authority to own its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction in which it conducts its business or owns property and in which the failure, individually or in the aggregate, to be so qualified would have a Material Adverse Effect. The Company has all necessary and material authorizations, approvals, orders, licenses, certificates and permits of and from all government regulatory officials and bodies, to own its properties and conduct its business as described in the Prospectus, except where failure to obtain such authorizations, approvals, orders, licenses, certificates or permits would not have a Material Adverse Effect.
(iv) The Company does not own any shares of capital stock or any other equity securities of any corporation or any equity interest in any firm, partnership, association or other entity other than as described in the Prospectus, except for ownership interests that would not have a Material Adverse Effect.
(v) The Company has an authorized share capitalization as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; all outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable and the certificates therefor are in valid and sufficient form in accordance with applicable state law; there are no other classes of stock outstanding except Common Stock; all outstanding options to purchase shares of Common Stock have been duly and validly authorized and issued; except as described in the Prospectus, there are no options, warrants or rights to acquire, or debt instruments convertible into or exchangeable for, or other agreements or understandings to which the Company is a party, outstanding or in existence, entitling any person to purchase or otherwise acquire any shares of capital stock of the Company; the issuance and sale of the Securities Act not later have been duly and validly authorized and, when issued and delivered and paid for, the Securities will be fully paid and nonassessable and free from preemptive rights, and will conform in all respects to the description thereof contained in the Prospectus; the Warrants and the Representative's Warrants constitute valid and binding obligations of the Company enforceable in accordance with their terms and the Company has reserved a sufficient number of shares of Common Stock for issuance upon exercise thereof; the Warrants and the Representative's Warrants possess the rights, privileges and characteristics as represented in the forms filed as exhibits to the Registration Statement and as described in the Prospectus; the Securities (other than the close Representative's Warrants) have been approved for listing on AMEX upon notice of business on issuance thereof; the second business day following certificates for the Securities are in valid and sufficient form. Each offer and sale of securities of the Company described in Item 15 of Part II of the Registration Statement was effected in compliance with the Act and the rules and regulations thereunder.
(vi) Other than as described in the Prospectus, there is no pending or, to the best knowledge of such counsel after reasonable investigation, threatened action, suit or proceeding before any court or governmental agency, authority or body, domestic or foreign, or any arbitrator involving the Company of a character required to be disclosed in the Registration Statement or the Prospectus that is not adequately disclosed in the Prospectus, and, to the best knowledge of such counsel, there is no contract or other document of a character required to be described in the Registration Statement or the Prospectus, or to be filed as an exhibit, which is not described or filed as required.
(vii) This Agreement has been duly authorized, executed and delivered by the Company and constitutes the legal, valid and binding agreement and obligation of the Company enforceable against it in accordance with its terms (subject to standard bankruptcy and equitable remedy exceptions, and limitations under the Act as to the enforceability of indemnification provisions).
(viii) The Company has full corporate power and corporate authority to enter into and perform its obligations under this Agreement and to issue, sell and deliver the Securities in the manner provided in this Agreement; and the Company has taken all necessary corporate action to authorize the execution and delivery of, and the performance of its obligations under, this Agreement.
(ix) Neither the offering, issue and sale of the Securities nor the consummation of any other of the transactions contemplated herein, nor the fulfillment of the terms hereof, will conflict with or result in a breach or violation of, or constitute a default under, or result in the imposition of a lien on any properties of the Company, or an acceleration of indebtedness pursuant to, the Articles of Incorporation (or other charter document) or bylaws of the Company, or any of the terms of any indenture or other agreement or instrument to which the Company is a party or by which its properties are bound, or any law, order, judgment, decree, rule or regulation applicable to the Company of any court, regulatory body, administrative agency, governmental body, stock exchange or arbitrator having jurisdiction over the Company. The Company is not in violation of its Articles of Incorporation or bylaws or, to the best knowledge of such counsel after reasonable investigation, in breach of or default under any of the terms of any indenture or other agreement or instrument to which it is a party or by which it or its properties are bound, which breach or default would, individually or in the aggregate, have a Material Adverse Effect.
(x) Except as disclosed in the Prospectus, no person has the right, contractual or otherwise, to cause the Company to issue to it any shares of capital stock in consequence of the issue and sale of the Securities to be sold by the Company hereunder nor does any person have preemptive rights, or rights of first refusal or other rights to purchase any of the Securities. Except as referred to in the Prospectus, no person holds a right to require or participate in a registration under the Act of Common Stock or any other equity securities of the Company.
(xi) No consent, approval, authorization or order of, or declaration or filing with, any court or governmental agency or body is required to be obtained or filed by or on behalf of the Company in connection with the transactions contemplated herein, except such as may have been obtained or made and registration of the Securities under the Act, and such as may be required under the Blue Sky laws of any jurisdiction.
(xii) To the best knowledge of such counsel after reasonable investigation, the Company is not in violation of or default under any judgment, ruling, decree or order or any statute, rule or regulation of any court or other United States governmental agency or body, including any applicable laws respecting employment, immigration and wages and hours, in each case, where such violation or default could have a Material Adverse Effect. The Company is not involved in any labor dispute, nor, to the best knowledge of such counsel, is any labor dispute threatened.
(xiii) The Company is not an investment company subject to registration under the Investment Company Act of 1940, as amended.
(xiv) The preparation and the filing of the Registration Statement with the Commission have been duly authorized by and on behalf of the Company, and the Registration Statement has been duly executed pursuant to such authorization by and on behalf of the Company.
(xv) The Company owns or possesses, or has the right to use pursuant to licenses, sublicenses, agreements, permissions or otherwise, adequate patents, copyrights, trade names, trademarks, service marks, licenses and other intellectual property rights necessary to carry on its business as described in the Prospectus, and, except as set forth in the Prospectus, neither such counsel nor, to the knowledge of such counsel, the Company has received any notice of either (i) default under any of the foregoing or (ii) infringement of or conflict with asserted rights of others with respect to, or challenge to the validity of, any of the foregoing which, in the aggregate, if the subject of an unfavorable decision, ruling or finding, could have a Material Adverse Effect, and counsel knows of no facts which could reasonably be anticipated to serve as the basis for any such notice. In addition, such counsel shall state that such counsel has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants of the Company and representatives of the Underwriters at which the contents of the Registration Statement and Prospectus were discussed and, although such counsel is not passing upon and does not assume responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or Prospectus (except as and to the extent stated in subparagraphs (i) and (v) above), on the basis of the foregoing and on such counsel's participation in the preparation of the Registration Statement and the Prospectus, nothing has come to the attention of such counsel that causes such counsel to believe that the Registration Statement, at the Effective Date and at the Closing Date (and any settlement date pursuant to Section 3(b) hereof), contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, at the date of such Prospectus or at the Closing Date (or any settlement date pursuant to Section 3(b) hereof), contained or contains any untrue statement of a material fact or omitted or omits to state 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 (it being understood that such counsel need express no comment with respect to the Financial Statements and schedules and other financial or statistical data derived therefrom included in the Registration Statement or Prospectus). References to the Prospectus in this Section 6(b) shall include any supplements thereto.
(c) The Representative shall have received from ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇, LLC, counsel for the Underwriters, an opinion dated the Closing Date (and any settlement date pursuant to Section 3(b) hereof), with respect to the issuance and sale of the Securities, and with respect to the Registration Statement, the Prospectus and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representative a certificate of the Company, signed by its Chief Executive Officer and its Chief Financial Officer, dated the Closing Date (and any settlement date pursuant to Section 3(b) hereof), to the effect that each has carefully examined the Registration Statement, the Prospectus (and any supplements thereto) and this Agreement, and, after due inquiry, that:
(i) As of the Closing Date (and any settlement date pursuant to Section 3(b) hereof), the statements made in the Registration Statement and the Prospectus are true and correct and the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) No order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities under the securities or Blue Sky laws of any jurisdiction is in effect and no proceeding for such purpose is pending before or, to the knowledge of such officers, threatened or contemplated by the Commission or the authorities of any such jurisdiction; and any material required request for additional information with respect to be filed the Registration Statement or the Prospectus on the part of the staff of the Commission or any such authorities brought to the attention of such officers has been complied with to the satisfaction of the staff of the Commission or such authorities.
(iii) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any change in the capital stock or long-term debt of the Company, except as set forth in or contemplated by the Registration Statement and the Prospectus, (y) there has not been any material adverse change in the general affairs, business, prospects, properties, management, results of operations or condition (financial or otherwise) of the Company, whether or not arising from transactions in the ordinary course of business, in each case, other than as set forth in or contemplated by the Registration Statement and the Prospectus, and (z) the Company pursuant to Rule 433(d) under the Securities Act shall have been filed has not sustained any material interference with the SEC within the applicable time periods prescribed for such filings by Rule 433 under the Securities Act.its business or properties from fire, exp
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate certificates furnished pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No For the period from and after effectiveness of this Agreement and prior to the Closing Date:
(i) no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under post-effective amendment to the Securities Act that would prevent its useRegistration Statement, shall have been issued be in effect and no proceedings for that such purpose shall have been instituted or threatened by the SEC; Commission, and the Final Prospectus Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf registration statement form (unless the Securities are duly registered in the manner contemplated by Rule 401(g)(2) to the satisfaction of the Representatives prior to the Closing Date);
(ii) the Company shall have been filed [the preliminary prospectus and] the Prospectus with the SEC pursuant to Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430B, and such post-effective amendment shall have become effective (if not later than automatically effective under the close rules of business on the second business day following Commission);
(iii) the execution and delivery of this Agreement; Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act Act, shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule or, to the extent applicable, under Rule 164(b); and
(iv) the NASD shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(b) The Company shall have furnished to the Representatives the opinion of ▇▇▇▇▇ Mulliss & Wicker, PLLC, counsel for the Company, dated the Closing Date, to the effect of paragraphs (i) and (iv) through (xi) below, and the opinion of the General Counsel of the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) and (iii) below:
(i) the Company is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware, has the corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and the Prospectus, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the “Principal Subsidiary Bank”) is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) each of the Company and the Principal Subsidiary Bank is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the Company or the Principal Subsidiary Bank, as the case may be, is required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock of the Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and (except as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except as otherwise set forth in the Disclosure Package and the Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors’ qualifying shares) are owned, directly or indirectly, by Rule 433 the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens or encumbrances;
(iv) the Indenture and the Securities conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Prospectus;
(v) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid, and binding instrument of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy; and the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy;
(vi) such counsel is without knowledge that (1) there is any pending or threatened action, suit or proceeding before or by any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement, the Disclosure Package, or the Prospectus which is omitted or not adequately disclosed therein, or (2) any franchise, contract or other document of a character required to be described in the Registration Statement, the Disclosure Package, or the Prospectus, or to be filed as an exhibit to the Registration Statement, is not so described or filed as required;
(vii) the Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment to the Registration Statement, has been issued, and such counsel is without knowledge that any proceeding for that purpose has been instituted or threatened, or that the Company has received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to the use of the automatic shelf registration statement form; and the Registration Statement, the Disclosure Package, and the Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Trust Indenture Act;
(viii) this Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in this Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy;
(ix) no consent, approval, authorization or order of any court or governmental agency or body in the United States is necessary or required on behalf of the Company for the consummation of the transactions contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the blue sky, state securities or insurance or similar laws of the United States in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(x) neither the issuance and sale of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach of, or constitute a default under the certificate of incorporation or by-laws of the Company, each as amended to date, or (1) the terms of any indenture or other material agreement or instrument known to such counsel and to which the Company or the Principal Subsidiary Bank is a party or bound, or (2) any order, law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Principal Subsidiary Bank; and
(xi) such counsel is without knowledge of any rights to the registration of securities of the Company under the Registration Statement which have not been waived by the holders of such rights or which have not expired by reason of lapse of time following notification of the Company’s intention to file the Registration Statement. In rendering such opinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no view as to portions of the Registration Statement, the Disclosure Package, or the Prospectus consisting of financial statements and other financial, accounting and statistical information and it has not independently verified, is not passing upon and assumes no responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package, or Prospectus or any amendment or supplement thereto (other than as stated in (iv) above), it has no reason to believe that such remaining portions of the Registration Statement or any amendment thereto as of the time it became effective, as of the Applicable Time or as of the date of such opinion, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that, subject to the foregoing with respect to financial statements and other financial, accounting and statistical information, the Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statement therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, as amended or supplemented, as of its date or as of the date of such opinion contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of North Carolina, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, upon the opinion of counsel to the Underwriters, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriters; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.
(c) The Representatives shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, and the Prospectus and any other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer or a Senior Vice President, and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, and the Prospectus and this Agreement and they are without knowledge that:
(i) the representations and warranties of the Company in this Agreement are not true and correct with the same force and effect as though expressly made at and as of the Closing Date and the Company has not performed or complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) any stop order suspending the effectiveness of the Registration Statement has been issued or any proceedings for that purpose have been instituted or threatened by the Commission; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus, there has been any material adverse change or any development involving a prospective material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(e) At the time this Agreement is executed, PricewaterhouseCoopers LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated as of the date of this Agreement, in form and substance satisfactory to the Representatives, confirming that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) They are an independent registered public accounting firm with respect to the Company within the meaning of the Securities Act and the applicable rules and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (United States).
(ii) In their opinion, the consolidated financial statements of the Company and its subsidiaries audited by them and included or incorporated by reference in the Registration Statement [, the preliminary prospectus] and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act and the related rules and regulations adopted by the Commission.
(iii) On the basis of procedures (but not an audit in accordance with generally accepted auditing standards) consisting of:
(a) Reading the minutes of the meetings of the stockholders, the board of directors, executive committee and audit committee of the Company and the boards of directors of the Principal Subsidiary Bank as set forth in the minute books through a specified date not more than five business days prior to the date of delivery of such letter;
(b) Performing the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Accounting Standards No. 100, Interim Financial In
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of Execution Time and the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No If filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(a) hereof, any other material required to be filed by the Company pursuant to Rule 433(d) shall have been filed in the manner and within the time period required by Rule 433 and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened threatened.
(b) The Company shall have furnished to the Representatives the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Deputy General Counsel and Corporate Secretary of the Company, dated the Closing Date (which opinion may be relied upon by Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Underwriters, as to matters of Pennsylvania law), to the effect that:
(i) the Company is a corporation duly incorporated and is presently subsisting as a corporation under the laws of the Commonwealth of Pennsylvania with all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, except for such power and authority the absence of which would not have a material adverse effect on the Company and its consolidated subsidiaries taken as a whole or materially and adversely affect its ability to perform its obligations under this Agreement, the Indenture and the Securities, and the Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended;
(ii) PNC Bank is validly organized and existing as a national banking association in good standing under the laws of the United States, with all requisite power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, except for such power and authority the absence of which would not have a material adverse effect on PNC Bank;
(iii) all the outstanding shares of capital stock of PNC Bank have been duly and validly authorized and issued and (except as provided in 12 U.S.C. § 55) are fully paid and nonassessable, and all outstanding shares of capital stock of PNC Bank are owned by the SEC; Company either directly or through wholly owned subsidiaries of the Company free and clear of any perfected security interest and, to the knowledge of such counsel after due inquiry, any other security interests, claims, liens or encumbrances;
(iv) the Company’s authorized equity capitalization, if set forth in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, is as set forth in the Final Prospectus shall and, if the Securities are to be listed on any stock exchange, authorization therefor has been given, subject to official notice of issuance and evidence of satisfactory distribution, or the Company has filed a preliminary listing application and all required supporting documents with respect to the Securities with such stock exchange and nothing has caused such counsel to believe that the Securities will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution and the satisfaction of other requirements which counsel reasonably believes will be satisfied in due course;
(v) the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, receivership, readjustment of debt, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally or general equitable principles (whether considered in a proceeding in equity or at law); and the Securities have been filed duly authorized and, when executed and authenticated in accordance with the SEC provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture, and enforceable against the Company in accordance with their terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, receivership, readjustment of debt, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally or general equitable principles (whether considered in a proceeding in equity or at law);
(vi) to the best knowledge of such counsel, there are no actions, suits, proceedings or investigations pending or threatened against the Company or PNC Bank in any court or before or by an arbitrator or governmental authority, of a character required to be disclosed in the Registration Statement which are not disclosed in the Pricing Disclosure Package and the Final Prospectus, and to the best of such counsel’s knowledge, there is no franchise, contract or other document of a character required to be described in the Registration Statement, the Pricing Disclosure Package or the Final Prospectus, or to be filed as an exhibit, which is not described or filed as required; and the statements included or incorporated in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus describing any legal proceedings or material contracts or agreements relating to the Company or any of its subsidiaries fairly summarize such matters in all material respects;
(vii) the Registration Statement has become effective under the Act; any required filing of the Basic Prospectus, any Preliminary Final Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) under has been made in the Securities Act not later than manner and within the close time period required by Rule 424(b); any required filing of business on the second business day following the execution and delivery of this Agreement; and any material required to be filed by the Company Issuer Free Writing Prospectus pursuant to Rule 433(d) has been made in the manner and within the time period required by Rule 433; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued, no proceedings for that purpose have been instituted or threatened, and the Registration Statement, the Pricing Disclosure Package and the Final Prospectus and each amendment thereof or supplement thereto made by the Company prior to the date of such opinion as of their respective issue dates (other than the financial statements and other financial information contained or incorporated therein, and that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification of Trustee (Form T-1) under the Trust Indenture Act, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of that Act and the Exchange Act and the respective rules and regulations thereunder; and nothing has come to the attention of such counsel that has caused such counsel to believe that at the Effective Date the Registration Statement contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; that the Pricing Disclosure Package as of the Applicable Time contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading or that the Final Prospectus as of its date and as of the Closing Date included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading except that such counsel does not express any opinion or belief as to (a) the financial statements or schedules or other data of a financial nature included or incorporated therein, (b) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification of Trustee (Form T-1) under the Trust Indenture Act, and (c) regulatory actions of the applicable regulatory authorities that are not otherwise disclosed by such regulatory authorities. In connection with the foregoing, the Underwriters acknowledge and understand that the character of determinations involved in the process of preparing the Registration Statement and the Final Prospectus (including any documents incorporated by reference) are such that such counsel need not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Final Prospectus (including any documents incorporated by reference) except as expressly set forth herein;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities Act by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(x) neither the issuance and sale of the Securities nor consummation of any other of the transactions contemplated herein nor the fulfillment of the terms hereof will: (A) violate any provision of the charter or by-laws of the Company or PNC Bank or (B) constitute a violation or breach of or default under any material provision of any material indenture or other material agreement or instrument known to such counsel and to which the Company or PNC Bank is a party, or (C) violate any judgment, order or decree applicable to the Company or PNC Bank of any court or federal or state regulatory or governmental agency having jurisdiction over the Company or PNC Bank; except in (B), or (C) above, with respect to violations, breaches or defaults that would not have a material adverse effect on the Company and its consolidated subsidiaries taken as a whole, or PNC Bank;
(xi) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, will not be an “investment company” or an entity “controlled” by an “investment company”, as such terms are defined in the Investment Company Act;
(xii) the Securities and the Indenture conform in all material respects to the descriptions thereof in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus; and
(xiii) the statements set forth in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus under the caption “Certain Terms of the Senior Notes”, taken together with the statements set forth in the Basic Prospectus under the caption “Description of Debt Securities of The PNC Financial Services Group, Inc.”, insofar as they purport to describe the provisions of the laws and documents referred to therein, fairly summarize in all material respects the matters described therein; In rendering such opinion, such counsel will opine only as to matters involving the application of the laws of the Commonwealth of Pennsylvania or the United States and may rely (A) as to matters involving the application of laws of any jurisdiction other than the Commonwealth of Pennsylvania or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are reasonably satisfactory to counsel for the Underwriters, except that it will not be required that such counsel obtain an opinion of New York counsel as to matters of New York law in order to render such opinion or that such counsel express an opinion as to matters arising under the laws of any jurisdiction other than the laws of the Commonwealth of Pennsylvania and matters of federal law arising under the laws of the United States of America, and (B) as to matters of fact, to the extent deemed proper, on certificates or representations of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have been filed received an opinion of McGuireWoods LLP, counsel to the Company, dated the Closing Date, substantially to the effect that:
(i) the discussion set forth in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus under the caption “Material U.S. Federal Income Tax Consequences”, in so far as it relates to matters of United States federal income tax laws, subject to the qualifications, exceptions, assumptions and limitations described therein, fairly summarizes in all material respects the matters set forth therein.
(d) The Representatives shall have received from Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Underwriters, an opinion and disclosure letter, dated the Closing Date, with respect to the issuance and sale of the Securities, the Registration Statement, and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board, the President, a Vice Chairman of the Board or any Executive Vice President, Senior Vice President, Vice President or Assistant Vice President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Pricing Disclosure Package, the Final Prospectus, any supplement to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date, with the SEC within same effect as if made on the applicable time periods prescribed Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for such filings that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent consolidated financial statements included or incorporated by Rule 433 under reference in the Securities Act.Registration Statement, the Pricing Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), (i) there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, (ii) the Company and its subsidiaries have not incurred any liability or obligation that is material to the Company and its subsidiaries, taken as a whole, and (iii) the Company has not purchased any of its outstanding capital stock except pursuant to its share repurchase programs and employee benefit plans in the ordinary course of business, and has not declared, paid or otherwise made any dividend or distribution of any kind of its capital stock other
Appears in 1 contract
Sources: Underwriting Agreement (PNC Financial Services Group, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate certificates furnished NY2-739605 pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No For the period from and after effectiveness of this Agreement and prior to the Closing Date:
(i) no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under post-effective amendment to the Securities Act that would prevent its useRegistration Statement, shall have been issued be in effect and no proceedings for that such purpose shall have been instituted or threatened by the SEC; Commission, and the Final Prospectus Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to use of the automatic shelf registration statement form (unless the Shares are duly registered in the manner contemplated by Rule 401(g)(2) to the satisfaction of the Representative prior to the Closing Date);
(ii) the Company shall have been filed the preliminary prospectus and the Prospectus with the SEC pursuant to Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430B, and such post-effective amendment shall have become effective (if not later than automatically effective under the close rules of business on the second business day following Commission);
(iii) the execution and delivery of this Agreement; Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act Act, shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule or, to the extent applicable, under Rule 164(b); and
(iv) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(b) The Company shall have furnished to the Representative the opinion of McGuireWoods LLP, counsel for the Company, dated the Closing Date, to the effect of paragraphs (i) and (v) through (xiii) below, and the opinion of the General Counsel of the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) through (iv) below:
(i) the Company is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware, has the corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and the Prospectus, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the “Principal Subsidiary Bank”) is a national banking association formed under the laws of the United States and authorized thereunder to transact business; NY2-739605
(ii) each of the Company and the Principal Subsidiary Bank is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the Company or the Principal Subsidiary Bank, as the case may be, is required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock of the Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and (except as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except as otherwise set forth in the Disclosure Package and the Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors’ qualifying shares) are owned beneficially, directly or indirectly, by Rule 433 the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens or encumbrances;
(iv) such counsel is without knowledge that there is (1) any pending or threatened action, suit or proceeding before or by any court or governmental agency, authority or body, domestic or foreign, or any arbitrator involving the Company or any of its subsidiaries required to be disclosed in the Registration Statement, the Disclosure Package or the Prospectus which is omitted or not adequately disclosed therein, or (2) any franchise, contract or other document required to be described in the Registration Statement, the Disclosure Package or the Prospectus, or to be filed as an exhibit to the Registration Statement, which is not so described or filed as required;
(v) the Deposit Agreement, the Depositary Shares and the Preferred Stock conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Prospectus;
(vi) the Registration Statement became effective under the Securities Act automatically upon its filing; no stop order suspending the effectiveness of the Registration Statement has been issued, and such counsel is without knowledge that any proceeding for that purpose has been instituted or threatened, or that the Company has received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form; and the Registration Statement, the Disclosure Package and the Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements under the Securities Act and the Exchange Act;
(vii) this Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by you, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in this Agreement may be limited by federal and state securities laws, and further NY2-739605 subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and any bank regulatory powers now or hereafter in effect and to the application of principles of public policy;
(viii) no consent, approval, authorization or order of any court or governmental agency or body in the United States is necessary or required on behalf of the Company for the consummation of the transactions contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the blue sky, state securities, insurance or similar laws of the United States in connection with the purchase and distribution of the Depositary Shares by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(ix) the shares of Preferred Stock have been duly authorized and, when paid for as contemplated herein, will be duly issued, fully paid and nonassessable;
(x) the Depositary Shares have been duly and validly authorized for issuance and sale, and, when issued and delivered against payment therefor pursuant to this Agreement, the Depositary Shares will be duly and validly issued and fully paid and non-assessable; and all corporate action required to be taken for the authorization, issue and sale of the Depositary Shares has been validly and sufficiently taken and the Depositary Shares represent legal and valid interests in the Preferred Stock;
(xi) neither the issuance and sale of the Preferred Stock or the Depositary Shares, nor the consummation of any other of the transactions herein contemplated or contemplated by the Deposit Agreement nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach of, or constitute a default under (1) the Company’s Amended and Restated Certificate of Incorporation or the Bylaws, as amended to date, (2) the terms of any indenture or other material agreement or instrument known to such counsel and to which the Company or the Principal Subsidiary Bank is a party or bound, or (3) any order, law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Principal Subsidiary Bank;
(xii) the Deposit Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the other parties thereto, constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and any bank regulatory powers now or hereafter in effect and to the application of principles of public policy; and
(xiii) such counsel is without knowledge of any rights to the registration of securities of the Company under the Registration Statement which have not been waived by the holders of such rights or which have not expired by reason of lapse of time following notification of the Company’s intention to file the Registration Statement. ▇▇▇-▇▇▇▇▇▇ ▇▇ rendering such opinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no view as to portions of the Registration Statement, the Disclosure Package, or the Prospectus consisting of financial statements and other financial, accounting and statistical information and it has not independently verified, is not passing upon and assumes no responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package, or the Prospectus or any amendment or supplement thereto (other than as stated in (v) above), it has no reason to believe that such remaining portions of the Registration Statement or any amendment thereto as of the time it became effective, as of the Initial Sale Time or as of the date of such opinion, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that, subject to the foregoing with respect to financial statements and other financial, accounting and statistical information, the Disclosure Package, taken as a whole, as of the Initial Sale Time, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statement therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, as amended or supplemented, as of its date or as of the date of such opinion contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel also need not pass upon nor assume any responsibility for ascertaining whether or when any of the information contained in each Disclosure Package was conveyed to any purchaser of the Depositary Shares. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of North Carolina, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, upon the opinion of counsel to the Underwriters, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriters; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.
(c) The Representative shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package and the Prospectus and any other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representative a certificate of the Company, signed by any Senior Vice President or Treasurer or any other authorized officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and this Agreement and they are without knowledge that:
(i) the representations and warranties of the Company in this Agreement are not true and correct with the same force and effect as though expressly made at NY2-739605 and as of the Closing Date and the Company has not performed or complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) any stop order suspending the effectiveness of the Registration Statement has been issued or any proceedings for that purpose have been instituted or threatened by the Commission;
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus, there has been any material adverse change or any development involving a prospective material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus; and
(iv) any litigation or proceeding shall be pending to restrain or enjoin the issuance or delivery of the Shares, or which in any way affects the validity of the Shares.
(e) At the time this Agreement is executed, PricewaterhouseCoopers LLP shall have furnished to the Representative a letter or letters (which may refer to letters previously delivered to one or more of the Representative), dated as of the date of this Agreement, in form and substance satisfactory to the Representative, confirming that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) They are an independent registered public accounting firm with respect to the Company within the meaning under the Securities Act and the applicable rules and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (United States).
(ii) In their opinion, the consolidated financial statements of the Company and its subsidiaries audited by them and included or incorporated by reference in the Registration Statement, the preliminary prospectus and the Prospectus comply as to form in all material respects with the applicable accounting requirements under the Securities Act and the Exchange Act and the related rules and regulations adopted by the Commission.
(iii) On the basis of procedures (but not an audit in accordance with generally accepted auditing standards) consisting of:
(a) Reading the minutes of the meetings of the stockholders,
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will hereunder shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein, herein as of the date hereof and each Delivery Date, to the accuracy of any material statements made in any certificates, opinions, affidavits, written statements or letters furnished to the Representative(s) or to counsel to the Underwriters identified on Schedule I hereto (“Underwriters’ Counsel”) pursuant to the provisions hereof, as to the performance by the Company of its respective obligations hereunder and to each of the date following additional conditions precedent:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filings pursuant to the Rules and Regulations and all filings (including, without limitation, the Term Sheet) required by Rule 433 or Rule 424(b) shall have been made within the periods required by such Rules, and no such filings will have been made without the consent of the Representative(s).
(b) No order suspending the effectiveness of any amendment to the Registration Statement filed after or preventing or suspending the date hereof use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or suspending the qualification of the Indenture, shall be in effect and prior no proceedings for such purpose shall be pending before or threatened by the Commission; no notice of objection of the Commission to use the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the Rules and Regulations shall have been received by the Company; and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the Closing Date (including the filing of any document incorporated by reference therein) and as reasonable satisfaction of the Closing Date Representative(s).
(c) The Company shall have furnished to the Representative(s) the opinion of the Chief Legal Officer, General Counsel or an Associate General Counsel of the Company, addressed to the Underwriters and dated each Delivery Date, to the effect that:
(i) The Company has been duly incorporated and is validly existing and in good standing as a corporation under the law of the jurisdiction of its incorporation and has full corporate power to conduct the businesses in which it is engaged as described in the Prospectus. Each of the Significant Subsidiaries that is incorporated under the laws of the United States or any Additional Closing DateState or territory thereof (a “Domestic Significant Subsidiary”) is a duly incorporated and validly existing corporation in good standing under the law of its jurisdiction of incorporation, and has full corporate power and authority to conduct its business as described in the Prospectus. Each of the Company and the Domestic Significant Subsidiaries is duly qualified to do business as a foreign corporation, is in good standing in its jurisdiction of incorporation and is duly registered as a broker-dealer, broker, dealer or investment advisor, as the case may be, in each jurisdiction in which the nature of the business conducted by it or in which the ownership or holding by lease of the properties owned or held by it requires such qualification or registration, except for such jurisdictions where the failure to so qualify, to be in good standing or to register would not have a Material Adverse Effect.
(ii) All the outstanding shares of capital stock of the Domestic Significant Subsidiaries have been duly authorized and are validly issued and outstanding and are fully paid and non-assessable and, except for directors’ qualifying shares, are owned by the Company or a subsidiary of the Company free and clear of any claims, liens, encumbrances and security interests.
(iii) The Deposit Agreement, the Shares, the Depositary Shares and the Depositary Receipts conform in all material respects to the descriptions thereof contained in the Prospectus.
(iv) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company (including the Shares being delivered on such Delivery Date) have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the Depositary Shares representing the Shares delivered on such Delivery Date have been duly and validly authorized by the Company; and assuming the due execution by the Depositary of the Deposit Agreement and the due execution by the Depositary and, if required by the Deposit Agreement, the Registrar of the Depositary Receipts in accordance with the terms of the Deposit Agreement and upon the deposit by or on behalf of the Underwriters of the Shares with the Depositary pursuant to the Deposit Agreement, such Depositary Shares will represent legal and valid interests in the Shares delivered on such Delivery Date and the Depositary Receipts will constitute valid evidence of such interests in such Shares and will be entitled to the benefits of the Deposit Agreement.
(v) There are no preemptive or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any Shares pursuant to the Company’s charter or by-laws or any agreement or other instrument known to such counsel.
(vi) No consent, approval, authorization, order, registration or qualification of any court or governmental agency or body is required for the consummation of the transactions contemplated in this Agreement or the compliance by the Company with the provisions of the Deposit Agreement, except for such consents, approvals, authorizations, orders, registrations or qualifications as have been obtained under the Securities Act and such as may be required under the Exchange Act under state securities laws and Blue Sky laws of any jurisdiction.
(vii) Such counsel does not know of any contracts or other documents that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Rules and Regulations which have not been filed as exhibits to the Registration Statement or incorporated therein by reference as permitted by the Rules and Regulations.
(viii) Except as described in the Registration Statement, the most recent Preliminary Prospectus and the Prospectus, such counsel does not know of any litigation or any governmental proceeding pending or threatened against the Company or any of its subsidiaries that might reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect or that is required to be disclosed in the Registration Statement, the most recent Preliminary Prospectus and the Prospectus.
(ix) To such counsel’s knowledge, neither the Company nor any of the Domestic Significant Subsidiaries is in violation of its corporate charter or by-laws, nor in default under any agreement, indenture or instrument known to such counsel, which violation or default might reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(x) This Agreement has been duly authorized, executed and delivered by the Company; the execution, delivery and performance of this Agreement and the Deposit Agreement by the Company will not conflict with, or result in the creation or imposition of any lien, charge or encumbrance upon any of the assets of the Company or the Domestic Significant Subsidiaries pursuant to the terms of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel and to which the accuracy Company or the Domestic Significant Subsidiaries is a party or bound, or result in a violation of the corporate charter or by-laws of the Company or the Domestic Significant Subsidiary or any statute, rule, regulation or any order known to such counsel of any court or governmental agency having jurisdiction over the Company, the Domestic Significant Subsidiaries or any of their respective properties, the effect of which conflict, violation or default might reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(xi) The Deposit Agreement has been duly authorized, executed and delivered by the Company, and, assuming due authorization, execution and delivery by the Depositary, the Deposit Agreement constitutes a valid and binding agreement, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally from time to time in effect, to general equitable principles (whether considered in a proceeding at law or in equity) and to an implied covenant of good faith and fair dealing.
(xii) The Registration Statement has become effective under the Securities Act, and, to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted or threatened by the Commission, and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the Rules and Regulations has been received by the Company.
(xiii) The Registration Statement, the Prospectus and each amendment thereof or supplement thereto (except that no opinion need be expressed as to the financial statements and notes thereto or the schedules or other financial or statistical data or any Form T-1 under the Trust Indenture Act of 1940, as amended (each, a “Form T-1”), included or incorporated by reference therein) comply as to form in all material respects with the requirements of the Securities Act and the Rules and Regulations.
(xiv) If the Shares or the Depositary Shares, as the case may be, are to be listed on the NYSE, authorization therefor has been given, subject to official notice of issuance and evidence of satisfactory distribution, or the Company has filed a preliminary listing application and all required supporting documents with respect to the Shares or the Depositary Shares, as the case may be, with the NYSE, and such counsel has no reason to believe that the Shares or the Depositary Shares, as the case may be, will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution. Such counsel shall also have furnished a statement that although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and the Prospectus (except as to those matters stated in paragraph (iii) of this subsection (c)), such counsel has no reason to believe that (A) the Registration Statement, as of the Company’s officers latest Effective Date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, (B) the Pricing Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading or (C) the Prospectus as of its date and as of such Delivery Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (except, with respect to (A), (B) and (C) above, that no statement need be made in any certificate furnished pursuant as to the provisions financial statements and notes thereto or the schedules or other financial or statistical data or any Form T-1 included or incorporated by reference therein). In rendering such opinion and statement, such counsel may rely upon opinions of local counsel satisfactory to the Representative(s) for matters not governed by New York law and may rely as to matters of fact, to the extent he or she deems proper, upon certificates or affidavits of officers of the Company and public officials.
(d) The Representative(s) shall have received from Underwriters’ Counsel such opinion or opinions, dated the day of such Delivery Date, with respect to the issuance and sale of the Shares and the Depositary Shares, the Depositary Agreement, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representative(s) may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative(s) a certificate of its Chief Executive Officer, its President, Chief Operating Officer, Chief Administrative Officer, any Executive Vice President, Senior Vice President or Vice President, and its Chief Financial Officer, its Treasurer, its Financial Controller or its Global Head of Asset Liability Management (or other officer performing substantially the same function), dated the day of the Delivery Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus and this Agreement, and that, to the performance and observance by the Company best of all of its covenants and agreements herein contained and to the following additional conditionstheir knowledge after due inquiry:
(ai) The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of such Delivery Date with the same effect as if made on such Delivery Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Delivery Date.
(ii) No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, shall have Statement has been issued and no proceedings for that purpose shall have been instituted or threatened by threatened; and no notice of objection of the SEC; Commission to the Final Prospectus shall have been filed with use of the SEC Registration Statement or any post-effective amendment thereto pursuant to Rule 424(b401(g)(2) of the Rules and Regulations has been received by the Company;
(iii) The Registration Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading. (x) the Pricing Disclosure Package, as of the Applicable Time, did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (y) the Prospectus did not, as of its date, and does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (z) since the applicable Effective Date of the Registration Statement there has not occurred any event required to be set forth in an amended or supplemented Prospectus which has not been so set forth.
(f) At each Delivery Date, a nationally recognized independent registered public accounting firm shall have furnished to the Representative(s) a letter, dated the day of such Delivery Date, confirming that they are independent auditors with respect to the Company within the meaning of the Securities Act not later than and in form and substance satisfactory to the close Representative(s), stating in effect that:
(i) In their opinion, the consolidated financial statements of business on the second business day following Company and its subsidiaries, and the execution supporting schedules, included in the Registration Statement and delivery the Prospectus and audited by them comply as to form in all material respects with the applicable accounting requirements of this Agreement; the Securities Act and any material required to be filed the Exchange Act and the related published rules and regulations thereunder.
(ii) On the basis of a reading of the unaudited consolidated financial statements of the Company and its subsidiaries, if any, included in the Registration Statement and the Prospectus and of the latest unaudited consolidated financial statements made available by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the SEC within the applicable time periods prescribed for such filings by Rule 433 under the Securities Act.and ▇▇▇▇▇▇ Brothers Inc., carrying out certain specified procedures (but not an
Appears in 1 contract
Sources: Underwriting Agreement (Lehman Brothers Holdings Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Corporation contained herein, herein as of the date hereof, as of Execution Time and the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Corporation made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all Corporation of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No If filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(a) hereof, any other material required to be filed by the Corporation pursuant to Rule 433(d) shall have been filed in the manner and within the time period required by Rule 433 and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened threatened.
(b) The Corporation shall have furnished to the Representatives the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇, III, Esq., Chief Governance Counsel and Corporate Secretary of the Corporation, dated the Closing Date (which opinion may be relied upon by Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Underwriters, as to matters of Pennsylvania law), to the effect that:
(i) the Corporation is a corporation duly incorporated and is presently subsisting as a corporation under the laws of the Commonwealth of Pennsylvania with all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, except for such power and authority the absence of which would not have a material adverse effect on the Corporation and its consolidated subsidiaries taken as a whole, or materially and adversely affect its ability to perform its obligations under this Agreement, the Deposit Agreement and the Securities; and the Corporation is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended;
(ii) PNC Bank is validly organized and existing as a national banking association in good standing under the laws of the United States, with all requisite power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, except for such power and authority the absence of which would not have a material adverse effect on PNC Bank;
(iii) The shares of Preferred Stock represented by the SECDepositary Shares being delivered to the Underwriters at the Closing Date (as defined hereunder) have been duly authorized and, when issued and delivered as provided in this Agreement, will be duly and validly issued, fully paid and nonassessable, and will have the rights set forth in the Corporation’s Articles of Incorporation, as amended to the Closing Date;
(iv) The Depositary Shares being delivered to the Underwriters at the Closing Date have been duly authorized and, when issued and delivered against payment therefor as provided in this Agreement, will be duly and validly issued and will be entitled to the rights under, and the benefits of, the Deposit Agreement;
(v) all the outstanding shares of capital stock of PNC Bank have been duly and validly authorized and issued and (except as provided in 12 U.S.C. § 55) are fully paid and nonassessable, and all outstanding shares of capital stock of PNC Bank are owned by the Corporation either directly or through wholly owned subsidiaries of the Corporation free and clear of any perfected security interest and, to the knowledge of such counsel after due inquiry, any other security interests, claims, liens or encumbrances;
(vi) the Corporation’s authorized equity capitalization, if set forth in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, is as set forth in the Final Prospectus; the Securities conform in all material respects to the description thereof contained in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus; and, if the Securities are to be listed on any stock exchange, authorization therefor has been given, subject to official notice of issuance and evidence of satisfactory distribution, or the Corporation has filed a preliminary listing application and all required supporting documents with respect to the Securities with such stock exchange and nothing has caused such counsel to believe that the Securities will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution and the satisfaction of other requirements which counsel reasonably believes will be satisfied in due course;
(vii) this Agreement has been duly authorized, executed and delivered by the Corporation;
(viii) the issuance and sale of the Securities and the execution, delivery and performance by the Corporation of this Agreement, and the consummation of any other transaction herein contemplated will not (A) violate the Articles of Incorporation or By-laws of the Corporation or PNC Bank or (B) violate, result in a breach of, or constitute a default under the terms of any material indenture or other material agreement or instrument known to such counsel to which the Corporation or PNC Bank is a party or bound or (C) violate any material order or regulation known to such counsel to be applicable to the Corporation or PNC Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Corporation;
(ix) to the best knowledge of such counsel, there are no actions, suits, investigations or proceedings pending or threatened against the Corporation or PNC Bank in any court or before or by an arbitrator or governmental authority of a character required to be disclosed in the Registration Statement which are not disclosed in the Pricing Disclosure Package and the Final Prospectus, and to the best of such counsel’s knowledge, there is no franchise, contract or other document of a character required to be described in the Registration Statement, the Pricing Disclosure Package or the Final Prospectus, or to be filed as an exhibit, which are not described or filed as required; and the statements included or incorporated in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus shall have been filed with describing any legal proceedings or material contracts or agreements relating to the SEC Corporation or any of its subsidiaries fairly summarize such matters in all material respects;
(x) the Registration Statement has become effective under the Act; any required filing of the Basic Prospectus, any Preliminary Final Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) under has been made in the Securities Act not later than manner and within the close time period required by Rule 424(b); any required filing of business on the second business day following the execution and delivery of this Agreement; and any material required to be filed by the Company Issuer Free Writing Prospectus pursuant to Rule 433(d) has been made in the manner and within the time period required by Rule 433; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued, no proceedings for that purpose have been instituted or threatened, and the Registration Statement, the Pricing Disclosure Package and the Final Prospectus and each amendment thereof or supplement thereto made by the Corporation prior to the date of such opinion as of their respective issue dates (other than the financial statements and other financial information contained or incorporated therein, and that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification of Trustee (Form T-1) under the Trust Indenture Act, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of that Act and the Exchange Act and the respective rules and regulations thereunder; and nothing has come to the attention of such counsel that has caused such counsel to believe that at the Effective Date the Registration Statement contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; that the Pricing Disclosure Package as of the Applicable Time contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading or that the Final Prospectus as of its date and as of the Closing Date included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading except that such counsel does not express any opinion or belief as to (a) the financial statements or schedules or other data of a financial nature included or incorporated therein, (b) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification of Trustee (Form T-1) under the Trust Indenture Act, and (c) regulatory actions of the applicable regulatory authorities that are not otherwise disclosed by such regulatory authorities. In connection with the foregoing, the Underwriters acknowledge and understand that the character of determinations involved in the process of preparing the Registration Statement and the Final Prospectus (including any documents incorporated by reference) are such that such counsel need not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Final Prospectus (including any documents incorporated by reference) except as expressly set forth herein;
(xi) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities Act by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(xii) The Corporation is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, will not be an “investment company” or an entity “controlled” by an “investment company”, as such terms are defined in the Investment Company Act;
(xiii) No holders of securities of the Corporation have rights to the registration of such securities under the Registration Statement;
(xiv) the statements set forth in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus under the captions “Description of Series O Preferred Stock” and “Description of Depositary Shares”, insofar as they purport to describe the provisions of the laws and documents referred to therein, fairly summarize in all material respects the matters described therein;; and
(xv) the Depositary Agreement has been duly authorized, executed and delivered by the Corporation, and constitutes a legal, valid and binding obligation of the Corporation, enforceable against the Corporation in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, receivership, readjustment of debt, moratorium, fraudulent conveyance or similar laws relating to or affecting creditors’ rights generally, or general equity principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing). In rendering such opinion, such counsel will opine only as to matters involving the application of the laws of the Commonwealth of Pennsylvania or the United States and may rely (A) as to matters involving the application of laws of any jurisdiction other than the Commonwealth of Pennsylvania or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are reasonably satisfactory to counsel for the Underwriters, except that it will not be required that such counsel obtain an opinion of New York counsel as to matters of New York law in order to render such opinion or that such counsel express an opinion as to matters arising under the laws of any jurisdiction other than the laws of the Commonwealth of Pennsylvania and matters of federal law arising under the laws of the United States of America, and (B) as to matters of fact, to the extent deemed proper, on certificates or representations of responsible officers of the Corporation and public officials. References to the Final Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have been filed with received an opinion of ▇▇▇▇ ▇▇▇▇▇ LLP counsel to the SEC within Corporation, dated the applicable time periods prescribed for such filings by Rule 433 Closing Date, substantially to the effect that:
(i) the discussion set forth in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus under the caption “Certain U.S. Federal Income Tax Considerations”, in so far as it relates to matters of United States federal income tax laws, subject to the qualifications, exceptions, assumptions and limitations described therein, fairly summarize in all material respects the matters set forth therein. In rendering such opinion, counsel may state that they are passing only on matters of New York, Pennsylvania and United States Federal law. In rendering such opinion, counsel may rely upon an opinion or opinions, each dated the Closing Date, of other counsel retained by them or the Corporation as to laws of any jurisdiction other than the United States or the State of New York, provided that (i) such reliance is expressly authorized by each opinion so relied upon and a copy of each such opinion is delivered to the Representatives, and (ii) counsel shall state in their opinion that they and the Representatives are justified in relying thereon. Insofar as such opinions involve factual matters, such counsel may rely, to the extent such counsel deems proper, upon certificates of officers of the Corporation or its subsidiaries and certificates of public officials.
(d) The Representatives shall have received from Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Underwriters, an opinion and disclosure letter, dated the Closing Date, with respect to the issuance and sale of the Securities Actand other related matters as the Representatives may reasonably require, and the Corporation shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. In rendering such opinion, counsel may rely upon an opinion or opinions, each dated the Closing Date, of other counsel retained by them or the Corporation as to laws of any jurisdiction other than the United States or the State of New York, provided that (A) such reliance is expressly authorized by each opinion so relied upon and a copy of each such opinion is delivered to the Representatives, and (B) counsel shall state in their opinion that they believe that they and the Representatives are justified in relying thereon. Insofar as such opinions involve factual matters, such counsel may rely, to the extent such counsel deems proper, upon certificates of officers of the Corporation and its subsidiaries and certificates of public officials.
(e) The Corporation shall have furnished to the Representatives a certificate of the Corporation, signed by the Chairman of the Board, the President, a Vice Chairman of the Board or any Executive or Senior Vice President and the principal financial or accounting officer of the Corporation, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Pricing
Appears in 1 contract
Sources: Underwriting Agreement (PNC Financial Services Group Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date Units described in Sections 2(a) and the Option Shares on any Additional Closing Date, as the case may be, will 2(b) hereof shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereofExecution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date and (including in the filing case of any document incorporated by reference therein) and as of Units delivered after the Closing Date or any Additional Closing Date, as the case may beany settlement date pursuant to Section 3(b) hereof), and to (ii) the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates delivered pursuant to the provisions of this Agreementhereof, to (iii) the performance and observance by the Company of all of its covenants obligations hereunder, and agreements herein contained and to (iv) the following additional conditions:
(a) No The Registration Statement shall have become effective (or, if a post- effective amendment is required to be filed pursuant to Rule 430A under the Act, such post-effective amendment shall become effective) not later than 5:00 p.m. Eastern Standard Time, on the execution date hereof or at such later date and time as the Representatives may approve in writing and, at the Closing Date (and any settlement date pursuant to Section 3(b) hereof), no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, qualification in any jurisdiction shall have been issued and no proceedings for that purpose shall have been instituted or initiated or, to the best knowledge of the Company, threatened by the SEC; the Final Prospectus Commission.
(b) The Company shall have been filed with furnished to the SEC Representatives the opinion of ▇▇▇▇, Dill, Carr, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel for the Company, addressed to the Underwriters and dated the Closing Date (and any settlement date pursuant to Section 3(b) hereof), or other evidence satisfactory to the Representatives to the effect that: (i) The Registration Statement has become effective under the Act; any required filing of the Prospectus or any supplements thereto pursuant to Rule 424(b) under has been made in the Securities Act not later than manner and within the close time period required by Rule 424(b); to the best knowledge of business on such counsel, no stop order suspending the second business day following effectiveness of the execution Registration Statement or any qualification in any jurisdiction has been issued and delivery of this Agreementno proceedings for that purpose have been instituted or threatened; any request from the Commission for additional information has been complied with; the Registration Statement and the Prospectus (and any supplements thereto) comply as to form in all material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed respects with the SEC within applicable requirements of the applicable time periods prescribed for Act and the rules and regulations thereunder (except that such filings by Rule 433 under counsel need express no opinion with respect to the Securities ActFinancial Statements and schedules included in the Registration Statement and Prospectus).
Appears in 1 contract
Sources: Underwriting Agreement (Starlight Entertainment Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates delivered pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, shall have been issued and no proceedings for that purpose shall have been instituted or threatened by the SEC; threatened, the Final Prospectus shall have been filed with the SEC Commission not later than 5:00 P.M., New York City time, on the second Business Day following the date hereof, and each Issuer Free Writing Prospectus shall have been timely filed with the Commission to the extent required by Rule 433 under the Act.
(b) The Company shall have furnished to the Representatives the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel to the Company, dated the Closing Date, to the effect that:
(i) the Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Ohio;
(ii) each significant subsidiary (as defined in Rule 405 under the Act) of the Company is a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation;
(iii) except for permits and similar authorizations required under the securities or Blue Sky laws of certain jurisdictions (as to which such counsel need not express an opinion), no consent, approval, authorization or other order of any regulatory body, administrative agency or other governmental body is legally required for the valid issuance and sale of the Securities to the Underwriters in the manner contemplated by this Agreement;
(iv) this Agreement has been duly authorized, executed and delivered by the Company;
(v) the Indenture has been duly and validly authorized, executed and delivered by the Company and, assuming due execution and delivery by the Trustee, is a valid and binding agreement of the Company and has been duly qualified under the Trust Indenture Act;
(vi) the Securities have been duly and validly authorized and executed by the Company and, assuming due authentication of such Securities by the Trustee, upon delivery to the Underwriters against payment therefor in accordance with the terms of this Agreement, will have been validly issued and delivered, and will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture;
(vii) the Registration Statement and all post-effective amendments, if any, have become effective under the Act, and, to the best of the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for such purpose are pending before or contemplated by the Commission and the filing of the Final Prospectus pursuant to Rule 424(b) has been made in accordance with Rule 424(b);
(viii) (1) each of the Incorporated Documents complies as to form in all material respects with the Exchange Act and the rules and regulations of the Commission thereunder and (2) the Registration Statement, the Preliminary Prospectus, each Issuer Free Writing Prospectus included in the Time of Sale Information and the Final Prospectus and any supplements or amendments thereto (including the Incorporated Documents) comply as to form in all material respects with the Act;
(ix) the statements in the Time of Sale Information and the Final Prospectus under the Securities captions “Description of Debt Securities” and “Description of the Notes”, insofar as such statements constitute a summary of the documents and other legal matters referred to therein, fairly present the information called for by the Act with respect to such documents and other legal matters;
(x) there are no legal or governmental proceedings known to such counsel pending or threatened required to be described in the Registration Statement, the Time of Sale Information or the Final Prospectus which are not later described as required, and there is no contract or document known to such counsel of a character required to be described in the Registration Statement, the Time of Sale Information or the Final Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required; and
(xi) the execution, delivery and performance of this Agreement and the Indenture, compliance by the Company with all provisions hereof and thereof and the consummation by the Company of the transactions contemplated hereby and thereby do not conflict with or constitute a breach of any of the terms or provisions of, or a default under, the certificate or articles of incorporation or bylaws or code of regulations of the Company or any of its significant subsidiaries or any agreement, indenture or other instrument known to such counsel to which the Company or any of its significant subsidiaries is a party or by which any of them is bound which conflict or default would have a Material Adverse Effect, or (assuming compliance with all applicable state securities and Blue Sky laws and without opining as to the enforceability of rights of indemnity or contribution under applicable law) violate any law, administrative regulation or ruling or court decree known to such counsel applicable to the Company or any of its significant subsidiaries or any of their respective property which violation would have a Material Adverse Effect. In rendering the opinion set forth above, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP may (A) assume that New York law is substantially similar to Ohio law with respect to the opinions delivered in subsections (v) and (vi) concerning the valid and binding nature of the obligations of the Indenture and the Securities; (B) assume the genuineness without independent investigation, of all signatures on all documents examined by such firm, the conformity to original documents of all documents submitted to such firm as certified or facsimile copies and the authenticity of all such documents; and (C) rely as to matters of law of any State other than Ohio upon the close opinion of business on counsel licensed to practice in such state and satisfactory to the second business day following Representatives (provided that such opinion shall state that the execution Representatives and delivery ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP are entitled to so rely) and as to certain matters of fact, upon certificates and written statements of officers and employees of, and accountants for, the Company. Such counsel shall have also furnished to the Representatives a written statement dated the Closing Date to the effect that, based upon their participation in the preparation of the Registration Statement, the Time of Sale Information and the Final Prospectus and any amendments and supplements thereto and upon their review and discussion of the contents thereof, but without independent check or verification except as specified, nothing has come to such counsel’s attention which would lead them to believe that the Registration Statement at the time it became effective and at the date of this Agreement; , including the information, if any, deemed pursuant to Rule 430A or 430B under the Act to be part of such Registration Statement at such time of effectiveness and at the date of this Agreement, contained any untrue statement of any material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, that the Time of Sale Information, at the Time of Sale (which such counsel may assume to be the date of this Agreement) contained any untrue statement of any material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading or that the Final Prospectus (as amended or supplemented, if applicable) as of its date or the Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel may state that, in rendering the opinion in (viii) above and the written statement referred to in the preceding sentence, they are not expressing any opinion on the financial statements and financial exhibits and other financial data included therein or omitted therefrom and that they are not responsible for the adequacy or accuracy of the derivation or compilation from the Company’s accounting records of the financial data included in the Registration Statement, the Time of Sale Information or the Final Prospectus and any amendments and supplements thereto.
(c) The Company shall have furnished to the Representatives the opinion of ▇▇▇▇ ▇. ▇▇▇▇▇, Associate General Counsel of the Company, dated the Closing Date, to the effect that there are no legal or governmental proceedings known to such counsel pending or threatened required to be described in the Registration Statement, the Time of Sale Information or the Final Prospectus which are not described as required, and there is no contract or document known to such counsel of a character required to be described in the Registration Statement, the Time of Sale Information or the Final Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Such counsel shall have also furnished to the Representatives a written statement dated the Closing Date to the same effect as that set forth in the last paragraph of the preceding clause (b).
(d) The Representatives shall have received from Shearman & Sterling LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Time of Sale Information, the Final Prospectus and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company signed by the Chairman of the Board, the President or any Vice President of the Company pursuant dated the Closing Date, to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement, as amended, has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Time of Sale Information and the Final Prospectus, there has been no material adverse change in the financial condition, earnings, business, properties or results of operations of the Company and its subsidiaries on a consolidated basis, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Time of Sale Information and the Final Prospectus.
(f) At the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to the Representatives, a copy of which shall be attached, in which case the letter provided at the Closing Date shall state that the previous letter can be relied on), dated the Closing Date, in form and substance satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference in the Time of Sale Information and the Final Prospectus.
(g) Subsequent to the respective dates as of which information is given in the Registration Statement, the Time of Sale Information (exclusive of any supplement thereto) and the Final Prospectus (exclusive of any supplement thereto) and prior to the Closing Date, there shall not have been any change, or any development involving a prospective change, in or affecting the business, properties or results of operations of the Company and its subsidiaries on a consolidated basis, the effect of which is, in the reasonable judgment of the Representatives, so material and adverse as to make it impractical to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement, the Time of Sale Information and the Final Prospectus.
(h) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have been any downgrading in the ratings of any of the Company’s debt securities, by any “nationally recognized statistical rating organization,” as such term is defined by the Commission for purposes of Rule 433(d436(g)(2) under the Securities Act or any public announcement by any such organization that it has under surveillance or review with negative implications, its rating of any of the Company’s debt securities (or proposed rating of the Securities).
(i) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 6 shall not have been filed with fulfilled to the SEC within reasonable satisfaction of the applicable Representatives when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be to the reasonable satisfaction of the Representatives and their counsel, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time periods prescribed for prior to, the Closing Date by the Representatives. Notice of such filings cancellation shall be given to the Company by Rule 433 under telephone or in the Securities Actmanner described in Section 14 hereof.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate certificates furnished pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No For the period from and after effectiveness of this Agreement and prior to the Closing Date:
(i) no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under post-effective amendment to the Securities Act that would prevent its useRegistration Statement, shall have been issued be in effect and no proceedings for that such purpose shall have been instituted or threatened by the SECCommission, and the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf registration statement form (unless the Securities are duly registered in the manner contemplated by Rule 401(g)(2) to the satisfaction of the Representatives prior to the Closing Date); 7
(ii) the Final Prospectus Company shall have been filed the Prospectus with the SEC pursuant to Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430B, and such post-effective amendment shall have become effective (if not later than automatically effective under the close rules of business on the second business day following the execution and delivery of this Agreement; Commission);
(iii) each Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act Act, shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule or, to the extent applicable, under Rule 164(b); and
(iv) the NASD shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(b) The Company shall have furnished to the Representatives the opinion of ▇▇▇▇▇ Mulliss & Wicker, PLLC, counsel for the Company, dated the Closing Date, to the effect of paragraphs (i) and (v) through (xi) below, and the opinion of the General Counsel of the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) through (iv) below:
(i) the Company is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware, has the corporate power and authority to own its properties and conduct its business as described in each Disclosure Package and the Prospectus, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the "Principal Subsidiary Bank") is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) each of the Company and the Principal Subsidiary Bank is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the Company or the Principal Subsidiary Bank, as the case may be, is required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock of the Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and (except as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except as otherwise set forth in each Disclosure Package and the Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors' qualifying shares) are owned, directly or indirectly, by Rule 433 the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens or encumbrances;
(iv) such counsel is without knowledge that (1) there is any pending or threatened action, suit or proceeding before or by any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement, each Disclosure Package, or the Prospectus which 8 is omitted or not adequately disclosed therein, or (2) any franchise, contract or other document of a character required to be described in the Registration Statement, a Disclosure Package, or the Prospectus, or to be filed as an exhibit to the Registration Statement, is not so described or filed as required;
(v) the Indenture and the Securities conform in all material respects to the descriptions thereof contained in each Disclosure Package and the Prospectus;
(vi) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid, and binding instrument of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy; and the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy;
(vii) the Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment to the Registration Statement, has been issued, and such counsel is without knowledge that any proceeding for that purpose has been instituted or threatened, or that the Company has received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to the use of the automatic shelf registration statement form; and the Registration Statement, each Disclosure Package and the Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Trust Indenture Act;
(viii) this Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in this Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy; 9
(ix) no consent, approval, authorization or order of any court or governmental agency or body in the United States is necessary or required on behalf of the Company for the consummation of the transactions contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the blue sky, state securities or insurance or similar laws of the United States in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(x) neither the issuance and sale of any of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach of, or constitute a default under (1) the certificate of incorporation or by-laws of the Company, each as amended to date, (2) the terms of any indenture or other material agreement or instrument known to such counsel and to which the Company or the Principal Subsidiary Bank is a party or bound, or (3) any order, law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Principal Subsidiary Bank; and
(xi) such counsel is without knowledge of any rights to the registration of securities of the Company under the Registration Statement which have not been waived by the holders of such rights or which have not expired by reason of lapse of time following notification of the Company's intention to file the Registration Statement. In rendering such opinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no view as to portions of the Registration Statement, each Disclosure Package or the Prospectus consisting of financial statements and other financial, accounting and statistical information and it has not independently verified, is not passing upon and assumes no responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, each Disclosure Package, or the Prospectus or any amendment or supplement thereto (other than as stated in (v) above), it has no reason to believe that such remaining portions of the Registration Statement or any amendment thereto as of the time it became effective, as of the Applicable Time or as of the date of such opinion, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that, subject to the foregoing with respect to financial statements and other financial, accounting and statistical information, each Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statement therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, as amended or supplemented, as of its date or as of the date of such opinion contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of North Carolina, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, upon the opinion of counsel to the Underwriters, or upon the opinion 10 of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriters; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.
(c) The Representatives shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, each Disclosure Package, and the Prospectus and any other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by any Senior Vice President or Treasurer or any other authorized officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, each Disclosure Package, and the Prospectus and this Agreement and they are without knowledge that:
(i) the representations and warranties of the Company in this Agreement are not true and correct with the same force and effect as though expressly made at and as of the Closing Date and the Company has not performed or complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) any stop order suspending the effectiveness of the Registration Statement has been issued or any proceedings for that purpose have been instituted or threatened by the Commission; and
(iii) since the date of the most recent financial statements included in each Disclosure Package and the Prospectus, there has been any material adverse change or any development involving a prospective material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in each Disclosure Package and the Prospectus.
(e) At the time this Agreement is executed, PricewaterhouseCoopers LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated as of the date of this Agreement, in form and substance satisfactory to the Representatives, confirming that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) They are an independent registered public accounting firm with respect to the Company within the meaning of the Securities Act and the applicable rules and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (United States).
(ii) In their opinion, the consolidated financial statements of the Company and its subsidiaries audited by them and included or incorporated by reference in the 11 Registration Statement and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act and the related rules and regulations adopted by the Commission.
(iii) On the basis of procedures (but not an audit in accordance with generally accepted auditing standards) consisting of:
(a) Reading the minutes of the meetings of the stockholders, the board of directors, executive committee and audit committee of the Company and the boards of directors of the Principal Subsidiary Bank as set forth in the minute books through a specified date not more than five business days prior to the date of delivery of such letter;
(b) Performing the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Accounting Standards No. 100, Interim Financial Information, on the unaudited condensed consolidated interim financial statements of the C
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, as amended from time or notice objecting to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, shall have been issued by the Commission and no proceedings for that purpose shall have been instituted or threatened by threatened. The Prospectus containing the SEC; the Final Prospectus Rule 430B Information shall have been filed with the SEC pursuant to Commission in the manner and within the time period required by Rule 424(b) under without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the Securities Act not later than the close requirements of business on the second business day following the execution and delivery of this Agreement; and any material Rule 430B). All materials required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the SEC Commission within the applicable time periods prescribed presented for such filings under Rule 433. The Company shall have paid the required Commission filing fees
(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)
(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Underwriters their opinion to the effect set forth in Exhibit A attached hereto, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials.
(c) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ LLP, with respect to the opinion set forth in paragraph 1 of Exhibit B, and ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, with respect to the opinion set forth in paragraph 2 of Exhibit B, counsel for the Company, to have furnished to the Underwriters their opinion as to tax issues, to the effect set forth in Exhibit B attached hereto, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials.
(d) The Underwriters shall have received from Sidley Austin llp, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Underwriters, with respect to this Agreement, the Registration Statement, the Prospectus and the Disclosure Package and other related matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Underwriters a certificate of the Company, signed by Rule 433 under the Chairman of the Board of Directors, the President, any Senior Executive Vice President, any Senior Vice President or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct as of the date hereof and on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement, or notice objecting to its use, has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Registration Statement, the Prospectus or the Disclosure Package (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business.
(f) At the time of the execution of this Agreement, the Underwriters shall have received from Ernst & Young LLP a letter, dated such date, in form and substance satisfactory to the Underwriters, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference or deemed to be incorporated by reference in the Registration Statement, the Prospectus or the Disclosure Package.
(g) At the Closing Date, the Underwriters shall have received from Ernst & Young LLP a letter, dated the Closing Date, to the effect that they reaffirm the statements made in the letter furnished pursuant to Section 6(f) hereof, except that the specified date referred therein to shall be a date not more than three New York business days prior to the Closing Date.
(h) Subsequent to the date hereof or, if earlier, the dates as of which information is given in the Registration Statement, the Prospectus or the Disclosure Package, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Prospectus and the Disclosure Package, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriters, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities Actas contemplated by the Registration Statement, the Prospectus and the Disclosure Package.
(i) Prior to the Closing Date, the Company shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
(j) Subsequent to the date hereof, there shall not have been any decrease in the rating of any of the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization” (as defined by the Commission in Section 3(a)(62) of the ▇▇▇▇ ▇▇▇) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. Nor shall any such rating organization have publicly announced that it has placed any of the Company’s debt securities or preferred stock on what is commonly termed a “watch list” for possible downgrading.
(k) The Securities shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Underwriters. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Underwriters. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Sidley Austin llp, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (UDR, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters under the Agreement to purchase the Firm Shares Securities shall be subject to the performance by the Company, each Seller and the Master Servicer of its obligations hereunder (in the case of the Company) and in any applicable agreement, and the following additional conditions:
(a) To the accuracy on the date of the Agreement and on the Closing Date and the Option Shares (as if made on any Additional such Closing Date, as the case may be, will be subject to the accuracy of the representations ) and warranties on the part of the Company contained herein, as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date of the representations and warranties on the part of the Company contained herein, and to the extent that the Company is deemed, pursuant to Section 1 hereof, not to make the representations and warranties (including xv) through (xxviii), inclusive, or portions thereof, to the filing accuracy of any document incorporated the representations and warranties provided by reference thereinthe parties making such representations and warranties as of the date thereof and on the Closing Date (as if made on such Closing Date) and as of the Closing Date or date of the effectiveness of any Additional amendment to the Registration Statement filed prior to the Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to the provisions of this Agreement, to the performance and observance by the Company of all of its covenants and agreements herein contained and to the following additional conditions:.
(ab) No The Registration Statement shall have become effective and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, shall have been issued and not withdrawn and no proceedings for that purpose shall have been instituted or threatened by the SECthreatened; and the Final Prospectus shall have been filed or mailed for filing with the SEC pursuant to Commission in accordance with Rule 424(b) 424 under the Securities Act not later than the close of business on the second business day following the execution Act, and delivery of this Agreement; and any material all actions required to be filed taken and all filings required to be made by the Company pursuant to Rule 433(d) under the Act prior to the sale of the Securities Act shall have been filed with the SEC within the applicable time periods prescribed for such filings by Rule 433 under the Securities Actduly taken or made.
Appears in 1 contract
Sources: Underwriting Agreement (Financial Asset Securitization Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of Execution Time and the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No The Final Prospectus, and any supplement thereto, has been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 55(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement or any notice under Rule 401(g)(2) under the Securities Act that would prevent from any governmental authority objecting to its use, use shall have been issued and no proceedings for that purpose shall have been instituted or threatened by the SEC; the Final Prospectus threatened.
(b) The Company shall have been filed with requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇ Limited, Bermuda, special Bermuda counsel for the SEC pursuant Company, to Rule 424(bhave furnished to the Representatives their opinion on matters of Bermuda law, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) Each of the Company, Renaissance Reinsurance, DaVinci Holdings and DaVinci Reinsurance is duly incorporated and existing under the Securities Act laws of Bermuda in good standing (meaning solely that the relevant company has not later than failed to make any filing with any Bermuda governmental authority, or to pay any Bermuda government fee or tax, which would make it liable to be struck off the close Register of business on Companies and thereby cease to exist under the second business day following laws of Bermuda).
(ii) The Company has the necessary corporate power and authority to execute, deliver and perform its obligations under each of this Agreement, the Base Indenture, the First Supplemental Indenture and the Securities. The execution and delivery of this Agreement; , the Base Indenture, the First Supplemental Indenture and the Securities by the Company and the performance by the Company of its obligations hereunder and thereunder do not and will not violate the memorandum of association or bye-laws of the Company, Renaissance Reinsurance, DaVinci Holdings and DaVinci Reinsurance nor any material applicable law, regulation, order or decree in Bermuda.
(iii) The Company has taken all corporate action required to authorize its execution, delivery and performance of this Agreement, the Base Indenture, the First Supplemental Indenture and the Securities. This Agreement, the Base Indenture, the First Supplemental Indenture and the Securities have been duly executed and delivered by or on behalf of the Company, and constitute the valid and binding obligations of the Company in accordance with the terms thereof.
(iv) No order, consent, approval, license, authorization or validation of, filing with or exemption by any government or public body or authority of Bermuda or any sub-division thereof is required to authorize or is required in connection with the execution, delivery, performance and enforcement of this Agreement, the Base Indenture, the First Supplemental Indenture and the Securities, except for consent under the Exchange Control Act 1972 (and Regulations made thereunder) which was issued by the Bermuda Monetary Authority on 7 July 2000.
(v) It is not necessary or desirable to ensure the enforceability in Bermuda of either this Agreement, the Base Indenture, the First Supplemental Indenture or the Securities that it be registered in any register kept by, or filed with, any governmental authority or regulatory body in Bermuda. However, to the extent that any of this Agreement, the Base Indenture, the First Supplemental Indenture or the Securities creates a charge over assets of the Company, it may be desirable to ensure the priority in Bermuda of the charge that it be registered in the Register of Charges in accordance with Section 55 of the Companies ▇▇▇ ▇▇▇▇. On registration, to the extent that Bermuda law governs the priority of a charge, such charge will have priority in Bermuda over any unregistered charges, and over any subsequently registered charges, in respect of the assets which are the subject of the charge. A registration fee of $665 will be payable in respect of the registration. While there is no exhaustive definition of a charge under Bermuda law, a charge includes any interest created in property by way of security (including any mortgage, assignment, pledge, lien or hypothecation). As this Agreement, the Base Indenture, the First Supplemental Indenture and the Securities are governed by the laws of the State of New York (the “Foreign Laws”), the question of whether they create such an interest in property would be determined under the Foreign Laws.
(vi) This Agreement, the Base Indenture, the First Supplemental Indenture and the issue of the Securities will not be subject to ad valorem stamp duty in Bermuda.
(vii) Each of the Company, Renaissance Reinsurance, DaVinci Holdings and DaVinci Reinsurance has all corporate power and authority necessary to conduct the business conducted by the particular entity (without reference to or including any particular subsidiary or other company) and to own, lease and operate its properties as described in the Final Prospectus and in “Item 1 – Business” and “Item 2 – Properties” of the Company’s Annual Report on Form 10-K for the year ended December 31, 2018.
(viii) The choice of the Foreign Laws as the governing law of this Agreement, the Base Indenture and the First Supplemental Indenture is a valid choice of law and would be recognized and given effect to in any action brought before a court of competent jurisdiction in Bermuda, except for those laws (i) which such court considers to be procedural in nature, (ii) which are revenue or penal laws or (iii) the application of which would be inconsistent with public policy, as such term is interpreted under the laws of Bermuda. The submission in this Agreement, the Base Indenture and the First Supplemental Indenture to the non-exclusive jurisdiction of the courts of the State of New York and the United States District Courts, in each case located in the Borough of Manhattan, City of New York and State of New York, or any United States Federal or New York State Court sitting in the Borough of Manhattan, the City of New York, as the case may be (the “Foreign Courts”) is valid and binding upon the Company.
(ix) Based solely upon a review of copies of (i) the Register of Members of Renaissance Reinsurance, (ii) the Register of Members of DaVinci Reinsurance and (iii) the Register of Members of DaVinci Holdings, each certified by its respective Secretary or Assistant Secretary at a specified date in March 2019, all of the issued and outstanding shares of Renaissance Reinsurance, DaVinci Holdings and DaVinci Reinsurance have been duly authorized, validly issued, fully paid and are non-assessable (which term when used herein means that no further sums are required to be paid by the holders thereof in connection with the issue thereof). All of the shares of Renaissance Reinsurance are registered in the name of RenRe Insurance Holdings Ltd. All of the Class A shares of DaVinci Holdings are registered in the name of Renaissance Other Investments Holdings Ltd., and all of the Class A shares of DaVinci Reinsurance are registered in the name of DaVinci Holdings.
(x) Based solely upon a review of a copy of the Register of Members of the Company prepared and issued by Computershare Shareowner Services LLC at a specified time in March 2019, the issued and outstanding shares of the Company outstanding prior to the issuance of the Securities have been duly authorized, validly issued and are fully paid and are non-assessable (which term used herein means that that no further sums are required to be paid by the holders thereof in connection with the issue thereof).
(xi) Based solely upon a review of a copy of its certificate of registration issued pursuant to the Insurance ▇▇▇ ▇▇▇▇ of Bermuda, as amended (the “Insurance Act”), Renaissance Reinsurance is duly registered in Bermuda to write general business insurance as a class 4 insurer in accordance with the provisions of the Insurance Act.
(xii) Based solely upon a review of a copy of its certificate of registration issued pursuant to the Insurance Act, DaVinci Reinsurance is duly registered in Bermuda to write general business insurance as a class 4 insurer in accordance with the provisions of the Insurance Act.
(xiii) The statements (A) in the Preliminary Final Prospectus and the Final Prospectus under the caption “Description of Notes” and in the Basic Prospectus under the captions “Description of Debt Securities” and “Enforcement of Civil Liabilities under United States Federal Securities Laws”, (B) in the Company’s Annual Report on Form 10-K for the year ended December 31, 2018, under the caption “Business – Regulation – Bermuda Regulation”, and (C) in “Item 15 – Indemnification of Officers and Directors” of the Registration Statement, insofar as they purport to describe the provisions of the laws of Bermuda referred to therein, are accurate and correct in all material respects as at the dates such documents were filed.
(xiv) The courts of Bermuda would recognize as a valid judgment, a final and conclusive judgment in personam obtained in the Foreign Courts against the Company based upon this Agreement, the Base Indenture or the First Supplemental Indenture under which a sum of money is payable (other than a sum of money payable in respect of multiple damages, taxes or other charges of a like nature or in respect of a fine or other penalty) and would give a judgment based thereon provided that (a) such courts had proper jurisdiction over the parties subject to such judgment, (b) such courts did not contravene the rules of natural justice of Bermuda, (c) such judgment was not obtained by fraud, (d) the enforcement of the judgment would not be contrary to the public policy of Bermuda, (e) no new admissible evidence relevant to the action is submitted prior to the rendering of the judgment by the courts of Bermuda and (f) there is due compliance with the correct procedures under the laws of Bermuda.
(xv) Based solely upon searches of the Cause Book of the Supreme Court of Bermuda conducted at a specified time in March 2019 (which would not reveal details of proceedings which have been filed but not actually entered in the Cause Book at the time of our searches), there are no judgments against any of the Company, Renaissance Reinsurance, DaVinci Holdings or DaVinci Reinsurance, nor any legal or governmental proceedings pending in Bermuda to which any of the Company, Renaissance Reinsurance, DaVinci Holdings or DaVinci Reinsurance is subject. As to matters of fact, such counsel may rely, to the extent they deem proper, on certificates of responsible officers of the Company, Renaissance Reinsurance, DaVinci Holdings and DaVinci Reinsurance, and public officials. References to the Final Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) The Registration Statement has become effective under the Act; such counsel has been orally advised by the Commission that no stop order suspending the effectiveness of the Registration Statement has been issued and, to the knowledge of such counsel, no proceedings for such purpose have been instituted or threatened; any required filing, pursuant to Rule 424(b) of the Act, of the Basic Prospectus, any Preliminary Final Prospectus and the Final Prospectus, and any supplements thereto, has been made in the manner and within the time period required by Rule 424(b); any required filing, pursuant to Rule 433 of the Act, of any Permitted Free Writing Prospectus listed on Schedule A hereto, and any supplements thereto, has been made in the manner and within the time period required by Rule 433; and the Registration Statement, the Preliminary Final Prospectus and the Final Prospectus (except for financial statements, notes thereto and schedules and other financial and statistical data as to which in each case such counsel need not express any opinion or belief) comply as to form in all material respects with the Act and the Exchange Act and the respective rules thereunder;
(ii) The Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Final Prospectus, the Company will not be, required to register as an “investment company” as defined in the U.S. Investment Company Act of 1940, as amended;
(iii) To such counsel’s knowledge, the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Indenture and the Securities and the consummation by the Company of the transactions contemplated herein and therein, did not at the time of execution of this Agreement and do not on the date of such opinion, contravene any agreement or other instrument binding upon the Company or any Subsidiary that is material to the Company and its subsidiaries, taken as a whole, or, any statute, rule, regulation, judgment, order or decree of any U.S. governmental body, agency or court having jurisdiction over the Company or any Subsidiary (assuming compliance by the Underwriters with all applicable securities and blue sky laws), and no consent, approval, authorization, or order of, or qualification with, any U.S. governmental body, agency or court is required for the performance by the Company of its obligations under this Agreement, the Indenture and the Securities, except for (A) the qualification under the Trust Indenture Act of the Indenture and (B) as may be required under the securities, blue sky or insurance laws of the various states in connection with the offer and sale of the Securities (as to which such counsel need not express any opinion) or as may already have been obtained;
(iv) The statements in (A) the Disclosure Package and the Final Prospectus under the captions “Description of Notes,” “Certain United States Federal Income Tax Considerations” and “Underwriting” (with respect solely to the description of this Agreement contained therein), (B) the Company’s Annual Report on Form 10-K for the year ended December 31, 2018, under the caption “Business—Regulation—U.S. Regulation,” and (C) Item 15 of the Registration Statement, in each case insofar as such statements constitute summaries of U.S. legal matters, documents or proceedings referred to therein, fairly present the information required to be shown with respect to such legal matters, documents and proceedings and fairly summarize the matters referred to therein, in each case, in all material respects (provided, however, that the statements under the caption “Certain United States Federal Income Tax Considerations” do not address considerations that depend on circumstances specific to the holders of the Company’s securities);
(v) Such counsel does not know of (A) any U.S. legal or governmental proceedings pending or threatened to which the Company or any Subsidiary is a party or to which any of the properties of the Company or any Subsidiary is subject that are required to be described in the Registration Statement or the Final Prospectus and are not so described or (B) any U.S. statutes or regulations that are required to be described in the Registration Statement or the Final Prospectus that are not described as required, or any contracts or other documents that are required to be described in the Registration Statement or the Final Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required;
(vi) Each document, if any, filed pursuant to Rule 433(d) under the Securities Exchange Act shall have been filed with and incorporated by reference in the SEC within Registration Statement, the applicable time periods prescribed for such filings by Rule 433 under Disclosure Package and the Securities Act.Final Prospectus (except fo
Appears in 1 contract
Sources: Underwriting Agreement (Renaissancere Holdings LTD)
Conditions to the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Firm Shares Stock as provided herein on the Closing Date and the Option Shares on and, with respect to any Additional Optional Stock, any Subsequent Closing Date, as the case may be, will shall be subject to (1) the accuracy of the representations and warranties on the part of the Company contained hereinherein as of the Execution Time and the Closing Date as though then made and, with respect to any Optional Stock, as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Subsequent Closing Date as though then made, (including the filing of any document incorporated by reference therein2) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to (3) the performance and observance by the Company of all its obligations hereunder and (4) each of its covenants and agreements herein contained and to the following additional conditions:
(a) No The Prospectus, and any supplement thereto, has been filed in the manner and within the time period required by Rule 424(b); and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; the Company has paid the fees required by the Commission relating to the Stock within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r); and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement or any notice under Rule 401(g)(2) under the Securities Act that would prevent objecting to its use, use shall have been issued and no proceedings for that purpose shall have been instituted or threatened by the SEC; the Final Prospectus Commission.
(b) FINRA shall have been filed raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(c) On the Closing Date and any Subsequent Closing Date, the Company shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated as of such Closing Date or Subsequent Closing Date and addressed to the Underwriters, each in form and substance satisfactory to the Representatives, to the effect set forth in Exhibit B hereto.
(d) On the Closing Date and any Subsequent Closing Date, the Representatives shall have received from Sidley Austin LLP, counsel for the Underwriters, such opinion or opinions, dated as of such Closing Date or Subsequent Closing Date and addressed to the Underwriters, with respect to the issuance and sale of the Stock, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) On the Closing Date and any Subsequent Closing Date, the Company shall have furnished to the Representatives a certificate of the Company, signed by the principal financial or accounting officer of the Company, dated as of such Closing Date or Subsequent Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, the Disclosure Package and any supplements or amendments thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of such Closing Date or Subsequent Closing Date with the SEC same effect as if made on such Closing Date or Subsequent Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date or Subsequent Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose or pursuant to Section 8A of the Securities Act have been instituted or, to the Company’s knowledge, threatened;
(iii) the Company has not received any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 424(b401(g)(2); and
(iv) since the date of the most recent financial statements included or incorporated by reference in the Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or otherwise), earnings, business, properties or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business or otherwise, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(f) On the Closing Date and any Subsequent Closing Date, the Company shall have furnished to the Representatives the opinion or opinions of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, the Company’s Deputy General Counsel (or such other in-house legal officer or officers acceptable to the Representatives), signed by the Deputy General Counsel or such counsel or counsels, dated as of such Closing Date or Subsequent Closing Date and addressed to the Underwriters, to the effect set forth in Exhibit C hereto.
(g) The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date and at any Subsequent Closing Date, letters, (which may refer to letters previously delivered to the Representatives), dated respectively as of the Execution Time and as of such Closing Date or Subsequent Closing Date and addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Base Prospectus, the Registration Statement and the Prospectus.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any supplement thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business or otherwise, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Stock as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any supplement thereto) and the Prospectus (exclusive of any supplement thereto).
(i) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act 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 later than indicate the close direction of business the possible change.
(j) The New York Stock Exchange shall have approved the Stock for listing, subject only to official notice of issuance.
(k) The Lock-Up Agreements between the Underwriters, on the second business day following one hand, and the execution officers of the Company set forth on Schedule II and delivery the directors of the Company, on the other hand, delivered to the Underwriters on or before the date of this Agreement; , shall be in full force and effect on the Closing Date and any material required Subsequent Closing Date. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed in compliance with the SEC within provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the applicable time periods prescribed for such filings by Rule 433 under the Securities ActUnderwriters.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Notes shall be subject to the accuracy of the representations and warranties on the part of the Company Transaction Entities contained herein, herein as of the date hereof, as of the date of Applicable Time and the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Operating Partnership and the Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance by the Operating Partnership and observance by the Company of all of its covenants and agreements herein contained their respective obligations hereunder and to the following additional conditions:
(a) No On the Closing Date, (i) the Registration Statement shall have been filed by the Operating Partnership and the Company with the Commission not earlier than three years prior to the date hereof and became effective upon filing in accordance with Rule 462(e) of the 1933 Act Regulations and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, Statement shall have been issued and no under the 1933 Act or proceedings for that purpose shall have been instituted therefor initiated or threatened by the SEC; Commission, and any request on the Final part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters, and no notice of objection of the Commission to the use of such form of registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the 1933 Act Regulations has been received by the Operating Partnership or the Company, (ii) each preliminary prospectus and the Prospectus shall have been filed with the SEC pursuant to Commission in the manner and within the time period required by Rule 424(b) under without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the Securities Act not later than requirements of Rule 430B), and no order preventing or suspending the close use of business on any preliminary prospectus or the second business day following Prospectus shall have been issued by the execution and delivery Commission or the securities authority of this Agreement; and any jurisdiction, (iii) any material required to be filed by the Company Operating Partnership pursuant to Rule 433(d) under of the Securities 1933 Act Regulations shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule 433, (iv) the Operating Partnership shall have paid the required Commission filing fees relating to the Securities within the time period required by Rule 433 under 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b), and (v) there shall not have come to your attention any facts that would cause you to believe that the General Disclosure Package or the Prospectus, at the time it was, or was required to be, delivered or made available to purchasers of the Securities, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading.
(b) The Operating Partnership and the Company shall have requested and caused Dentons US LLP, counsel for the Operating Partnership and the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the matters attached as Exhibit A hereto. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the States of Texas, New York, Maryland or Delaware (to the extent limited to Delaware corporate laws) or the federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company or the general partner of the Operating Partnership and public officials. Such opinion shall also cover any amendments or supplements thereto at the Closing Date. In addition, Dentons US LLP shall state that, although such counsel has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the General Disclosure Package or the Prospectus, no facts have come to such counsel’s attention that have caused such counsel to believe that (i) the Registration Statement or any amendment thereto, at the time of filing of the most recent combined Annual Report on Form 10-K of the Operating Partnership and the Company or as of the “new effective date” with respect to the Underwriters and the Securities pursuant to, and within the meaning of, Rule 430B(f)(2), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus, or any amendment or supplement thereto, as of their respective issue dates or at the Closing Date, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements, related notes and schedules and other financial information included or incorporated by reference therein or omitted therefrom, as to which such counsel need express no statement). With respect to statements contained in the General Disclosure Package, any statement contained in any of the constituent documents that are also part of the General Disclosure Package shall be deemed to be modified or superseded to the extent that any information contained in subsequent constituent documents modifies or replaces such statement.
(c) The Representatives shall have received from Sidley Austin llp, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the disclosure in the Registration Statement, the General Disclosure Package and the Prospectus and other related matters as the Representatives may reasonably require, and the Transaction Entities shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. In rendering such opinion, such counsel may rely, as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of responsible officers of the Company or the general partner of the Operating Partnership and public officials. In addition, in rendering such opinion, such counsel may rely on and assume the accuracy of an opinion of Dentons US LLP, counsel for the Operating Partnership and the Company, dated as of the Closing Date, with respect to matters of Maryland law.
(d) Each of the Company and the Operating Partnership shall have furnished to the Representatives a certificate, signed by the Chairman of the Board or President and the principal financial or accounting officer of the Company on behalf of the Company, for itself and as the sole member of the general partner of the Operating Partnership, respectively, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the General Disclosure Package and the Prospectus and any amendments or supplements to the foregoing, as well as this Agreement, and that:
(i) the representations and warranties of the Transaction Entities in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Transaction Entities have complied with all the agreements and satisfied all the conditions on their part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or, to the Company’s or Operating Partnership’s knowledge, are threatened by the Commission, no notice of objection of the Commission to the use of such form of registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the 1933 Act Regulations has been received by the Company or the Operating Partnership and no order preventing or suspending the use of any preliminary prospectus or the Prospectus shall have been issued by the Commission or the securities authority of any jurisdiction; and
(iii) since the date of the most recent financial statements included or incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus (for the avoidance of doubt, exclusive of any amendment or supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the General Disclosure Package and the Prospectus (for the avoidance of doubt, exclusive of any amendment or supplement thereto).
(e) At the date hereof, the Representatives shall have received a letter from Ernst & Young LLP dated such date, in form and substance reasonably satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus.
(f) On the Closing Date, the Representatives shall have received a letter, dated the Closing Date, from Ernst & Young LLP to the effect that they reaffirm the statements made in the applicable letter furnished pursuant to subsection (e) of this Section 6, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date.
(g) Subsequent to the date hereof or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there shall not have been (i) any change or decrease specified in the letter or letters referred to in subsection (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business, assets, prospects or properties of the Transaction Entities and the 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 General Disclosure Package and the Prospectus, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Securities as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus (for the avoidance of doubt, exclusive of any amendment or supplement thereto), or (iii) any downgrading in, or withdrawal of, the rating of any debt securities of, or guaranteed by, the Operating Partnership or the Company by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the 1934 Act), or any public announcement that any such organization has under surveillance or review its rating of any such securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading action, of such rating).
(h) On the Closing Date, counsel for the Underwriters shall have been furnished with such other documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Transaction Entities in connection with the issuance and sale of the Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters.
(i) Prior to the Closing Date, the Operating Partnership and the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(j) The Securities shall be eligible for clearance, settlement and trading through the facilities of DTC.
(k) At the Closing Date, the Securities shall be rated at least “Baa3” by ▇▇▇▇▇’▇ Investors Service, Inc. and “BBB-” by Standard & Poor’s Ratings Services and the Operating Partnership and the Company shall have delivered to the Representatives evidence reasonably satisfactory to the Representatives confirming that the Securities have such ratings; and since the execution of the Agreement, there shall not have occurred any downgrading in, or withdrawal of, the rating of any debt securities of or guaranteed by the Operating Partnership or the Company by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the 1934 Act), or any public announcement that any such organization has under surveillance or review its rating of any such securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating). Any certificate or document signed by any officer or representative of the Transaction Entities and delivered to the Underwriters, or to counsel for the Underwriters, shall be deemed a representation and warranty by each of the Transaction Entities to the Underwriters as to the statements made therein. The Transaction Entities will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the Closing Date or otherwise. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Operating Partnership in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the offices of Sidley Austin llp, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (American Campus Communities Operating Partnership LP)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Securities shall be subject to the accuracy of the representations and warranties (in each case, subject to the qualifications, if any, described therein) on the part of the Company Transaction Entities and the Selling Stockholders contained herein, herein as of the date hereof, as of the date of Applicable Time and the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company and the Selling Stockholders made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all and the Selling Stockholders of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No On the Closing Date, (i) the Registration Statement shall have been filed by the Company with the Commission not earlier than three years prior to the date hereof and became effective upon filing in accordance with Rule 462(e) of the 1933 Act Regulations and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, Statement shall have been issued and no under the 1933 Act or proceedings for that purpose shall have been instituted therefor initiated or threatened by the SEC; Commission, and any request on the Final part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters, and no notice of objection of the Commission to the use of such form of registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the 1933 Act Regulations has been received by the Company, (ii) each preliminary prospectus and the Prospectus shall have been filed with the SEC pursuant to Commission in the manner and within the time period required by Rule 424(b) under without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the Securities Act not later than requirements of Rule 430B), and no order preventing or suspending the close use of business on any preliminary prospectus or the second business day following Prospectus shall have been issued by the execution and delivery Commission or the securities authority of this Agreement; and any jurisdiction, (iii) any material required to be filed by the Company pursuant to Rule 433(d) under of the Securities 1933 Act Regulations shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule 433, (iv) the Company shall have paid the required Commission filing fees relating to the Securities within the time period required by Rule 433 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b), and (v) there shall not have come to your attention any facts that would cause you to believe that the General Disclosure Package or the Prospectus, at the time it was, or was required to be, delivered or made available to purchasers of the Securities, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, to have furnished to the Representatives and the Selling Stockholders their opinion, dated the Closing Date and addressed to the Representatives, to the matters attached as Exhibit A hereto. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company or the general partner of the Operating Partnership and public officials. Such opinion shall also cover any amendments or supplements thereto at the Closing Date. In addition, ▇▇▇▇▇▇▇▇ Chance US LLP shall state that, although such counsel has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the General Disclosure Package or the Prospectus, no facts have come to such counsel’s attention that have caused such counsel to believe that (i) the Registration Statement or any amendment thereto, at the time the Registration Statement or any such amendment became effective, or as of the “new effective date” with respect to the Underwriters and the Securities pursuant to, and within the meaning of, Rule 430B(f)(2), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus, or any amendment or supplement thereto, as of their respective issue dates or at the Closing Date, as the case may be, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements, schedules and other financial information included or incorporated by reference therein or excluded therefrom, as to which such counsel need express no statement).
(c) The Selling Stockholders shall have requested and caused Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the matters attached as Exhibit B hereto. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Selling Stockholders and public officials. Such opinion shall also cover any amendments or supplements thereto at the Closing Date.
(d) The Representatives shall have received from Sidley Austin llp, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the disclosure in the Registration Statement, the General Disclosure Package and the Prospectus and other related matters as the Representatives may reasonably require, and the Transaction Entities shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. In rendering such opinion, such counsel may rely, as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of responsible officers of the Company or the general partner of the Operating Partnership and public officials. In addition, in rendering such opinion, such counsel may rely on and assume the accuracy of the opinion of ▇▇▇▇▇▇▇▇ Chance US LLP, dated as of the Closing Date, with respect to matters of Maryland law.
(e) Each of the Company and the Operating Partnership shall have furnished to the Representatives a certificate, signed by the Chief Executive Officer and the Chief Financial Officer of the Company on behalf of the Company and MHC Trust, for itself and as general partner of the Operating Partnership, respectively, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the General Disclosure Package and the Prospectus and any amendments or supplements to the foregoing, as well as this Agreement, and that:
(i) the representations and warranties (in each case, subject to the qualifications, if any, described therein) of the Transaction Entities in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Transaction Entities have complied with all the agreements and satisfied all the conditions on their part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or, to the Company’s knowledge, are threatened by the Commission, no notice of objection of the Commission to the use of such form of registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the 1933 Act Regulations has been received by the Company and no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued by the Commission or the securities authority of any jurisdiction; and
(iii) since the date of the most recent financial statements included or incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse effect on the condition (financial or otherwise), business, earnings, properties, assets or prospects of the Transaction Entities and the 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 General Disclosure Package and the Prospectus.
(f) The Selling Stockholders shall have furnished to the Representatives and the Company a certificate, signed by one or more authorized officers of the Selling Stockholders on behalf of the Selling Stockholders, dated the Closing Date, to the effect that the representations and warranties (in each case, subject to the qualifications, if any, described therein) of the Selling Stockholders in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Selling Stockholders have complied with all the agreements and satisfied all the conditions on their part to be performed or satisfied at or prior to the Closing Date, and confirming that the signers of the certificate have reviewed the General Disclosure Package and the Prospectus and any amendments or supplements to the foregoing with respect to the Selling Stockholder Information.
(g) At the date hereof, the Representatives and the Selling Stockholders shall have received a letter from Ernst & Young LLP dated such date, in form and substance reasonably satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus.
(h) On the Closing Date, the Representatives and the Selling Stockholders shall have received a letter, dated the Closing Date, of Ernst & Young LLP, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (g) of this Section 6, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date.
(i) Subsequent to the date hereof or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there shall not have been (i) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business, assets, prospects or properties of the Transaction Entities and the 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 General Disclosure Package and the Prospectus, the effect of which is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus, (ii) any downgrading in, or withdrawal of, the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 1933 Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating), (iii) any suspension or material limitation by the Commission of trading in the Common Stock or trading in securities generally on the NYSE or any setting of minimum or maximum prices on such Exchange, or maximum ranges of prices have been required, by such Exchange or by such system or by order of the Commission, FINRA or any other governmental authority, (iv) any banking moratorium declared either by federal or New York State authorities or (v) any outbreak or significant escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis or any significant change in national or international political, financial or economic condition, the effect of which on financial markets is such as to make it, in the judgment of the Representatives, impractical or inadvisable to proceed with the offering or delivery of the Securities Actas contemplated by the General Disclosure Package and the Prospectus.
(j) On the Closing Date, the Securities shall have been approved for listing on the NYSE, subject only to official notice of issuance.
(k) At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Exhibit C hereto.
(l) On the Closing Date, counsel for the Underwriters shall have been furnished with such other documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Transaction Entities and the Selling Stockholders in connection with the issuance and sale of the Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters.
(m) Prior to the Closing Date, the Company and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) The Articles Supplementary classifying the Preferred Stock shall have been filed by the Company with the State of Maryland State Department of Assessments and Taxation. The Transaction Entities and the Selling Stockholders will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the Closing Date or otherwise. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date, by the Representatives. Notice of such cancellation shall be given to the Company and the Selling Stockholders in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the offices of Sidley Austin llp, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Equity Lifestyle Properties Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares Securities on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will shall be subject to the accuracy of the representations and warranties on the part of the Company Apollo Parties contained herein, as of herein at the date hereof, as of Execution Time and the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Apollo Parties made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company Apollo Parties of all of its covenants and agreements herein contained their obligations hereunder and to the following additional conditions:
(a) No The Registration Statement has become effective and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement or any notice under Rule 401(g)(2) post-effective amendment thereto has been issued under the Securities Act that would prevent its useAct, shall have no order preventing or suspending the use of any Preliminary Prospectus or the Prospectus has been issued and no proceedings for that purpose shall any of those purposes have been instituted or threatened by are pending or, to the SECIssuer’s knowledge, contemplated; and the Final Prospectus shall Issuer has complied with each request (if any) from the Commission for additional information. The Prospectus, and any supplement thereto, have been filed with in the SEC pursuant to manner and within the time period required by Rule 424(b) under and the Securities Act not later than final term sheet in the close of business on the second business day following the execution form approved by you and delivery of this Agreement; attached as Schedule III hereto, and any other material required to be filed by the Company Issuer pursuant to Rule 433(d) under the Securities Act Act, shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings by Rule 433 433. The Issuer shall have paid the required Commission filing fees relating to the Securities within the time period required by Rule 456(b)(1)(i) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(b) The Issuer shall have requested and caused ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Apollo Parties, to furnish to the Representatives its opinion and disclosure letter, dated the Closing Date, and addressed to the Representatives, substantially in the forms attached hereto as Exhibits A-1 and A-2, respectively.
(c) The Issuer shall have requested and caused Walkers, special Cayman counsel for each member of the Apollo Operating Group organized under the laws of the Cayman Islands (collectively, the “Apollo Cayman Parties”), to furnish to the Representatives its opinion, dated the Closing Date, and addressed to the Representatives, substantially in the form attached hereto as Exhibit B.
(d) The Issuer shall have requested and caused ▇▇▇▇▇ Law LP, special Anguillan counsel for Apollo Principal Holdings XI, LLC, to furnish to the Representatives its opinion, dated the Closing Date, and addressed to the Representatives, substantially in the form attached hereto as Exhibit C.
(e) The Representatives shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Disclosure Package, the Prospectus (as amended or supplemented on the Closing Date) and other related matters as the Representatives may reasonably require, and the Apollo Parties and the Apollo Operating Group shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Representatives shall have received on the Closing Date a certificate, dated the Closing Date, and signed by an executive officer of each Apollo Party or its general partner, on behalf of each of the Apollo Parties to the effect that (x) each of the signers of such certificate has carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto, and this Agreement, (y) the representations and warranties of the Apollo Parties contained in this Agreement are true and correct on and as of the Closing Date, and that the Apollo Parties have complied with all of the agreements and satisfied all of the conditions on their part to be performed or satisfied hereunder on or before the Closing Date, and (z) since the date of the most recent financial statements included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there has been no material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise) earnings, business or properties of the Issuer and the 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 amendment or supplement thereto); provided that any executive officer signing and delivering such certificate may rely upon his or her knowledge as to proceedings threatened.
(g) At the Execution Time and at the Closing Date, Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Apollo Parties, letters, dated respectively as of the Execution Time and as of the Closing Date, as the case may be, and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in each of the Registration Statement, the Disclosure Package and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off” date no more than three Business Days prior to the Closing Date.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment or supplement thereto), the Disclosure Package (exclusive of any amendment or supplement thereto) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise) earnings, business or properties of the Issuer and the 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 amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Issuer’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(j) Prior to the Closing Date, the Amended LLCA shall have been executed by the Manager and the Issuer, and the Amended LLCA shall be in full force and effect.
(k) Prior to the Closing Date, the Apollo Operating Group Amendments shall have been executed by the parties thereto and the Amended Apollo Operating Group Organizational Documents shall be in full force and effect.
(l) Simultaneously with the closing of the offering of the Securities, the Mirror Securities will be issued by each member of the Apollo Operating Group to the Issuer (or a wholly-owned subsidiary of the Issuer) with terms conforming with those set forth in the Disclosure Package and the Prospectus.
(m) Prior to the Closing Date, the Apollo Parties shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder, may be cancelled at, or at any time prior to, the Closing Date, by the Representatives. Notice of such cancellation shall be given to the Apollo Parties in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the Underwriters, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, at ▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Apollo Global Management LLC)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate certificates furnished pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:: 9
(a) No For the period from and after effectiveness of this Agreement and prior to the Closing Date:
(i) no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under post-effective amendment to the Securities Act that would prevent its useRegistration Statement, shall have been issued be in effect and no proceedings for that such purpose shall have been instituted or threatened by the SEC; Commission, and the Final Prospectus Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to use of the automatic shelf registration statement form (unless the Shares are duly registered in the manner contemplated by Rule 401(g)(2) to the satisfaction of the Representative prior to the Closing Date);
(ii) the Company shall have been filed the preliminary prospectus and the Prospectus with the SEC pursuant to Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430B, and such post-effective amendment shall have become effective (if not later than automatically effective under the close rules of business on the second business day following Commission);
(iii) the execution and delivery of this Agreement; Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act Act, shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule or, to the extent applicable, under Rule 164(b); and
(iv) the Financial Industry Regulatory Authority, Inc. ("FINRA") shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(b) The Company shall have furnished to the Representative the opinion of ▇▇▇▇▇ Mulliss & Wicker, PLLC, counsel for the Company, dated the Closing Date, to the effect of paragraphs (i) and (v) through (xiii) below, and the opinion of the General Counsel of the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) through (iv) below:
(i) the Company is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware, has the corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and the Prospectus, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the "Principal Subsidiary Bank") is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) each of the Company and the Principal Subsidiary Bank is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the Company or the Principal Subsidiary Bank, as the case may be, is required to be so qualified or licensed; 10
(iii) all the outstanding shares of capital stock of the Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and (except as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except as otherwise set forth in the Disclosure Package and the Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors' qualifying shares) are owned, directly or indirectly, by Rule 433 the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens or encumbrances;
(iv) such counsel is without knowledge that there is (1) any pending or threatened action, suit or proceeding before or by any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement, the Disclosure Package or the Prospectus which is omitted or not adequately disclosed therein, or (2) any franchise, contract or other document of a character required to be described in the Registration Statement, the Disclosure Package or the Prospectus, or to be filed as an exhibit to the Registration Statement, is not so described or filed as required;
(v) the Preferred Stock conforms in all material respects to the descriptions thereof contained in the Disclosure Package and the Prospectus and the Common Stock conforms in all material respects to the descriptions thereof contained in the Disclosure Package and the Prospectus;
(vi) the Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment to the Registration Statement, has been issued, and such counsel is without knowledge that any proceeding for that purpose has been instituted or threatened, or that the Company has received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form; and the Registration Statement, the Disclosure Package and the Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements under the Securities Act and the Exchange Act;
(vii) this Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by you, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in this Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and similar bank regulatory powers and to the application of principles of public policy;
(viii) no consent, approval, authorization or order of any court or governmental agency or body in the United States is necessary or required on behalf of the 11 Company for the consummation of the transactions contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the blue sky, state securities or insurance or similar laws of the United States in connection with the purchase and distribution of the Shares by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(ix) the shares of Preferred Stock, and any shares of Preferred Stock as to which the over-allotment option granted in Section 2 of this Agreement has been exercised, have been duly authorized and, when paid for as contemplated herein, will be duly issued, fully paid and nonassessable;
(x) the shares of Common Stock initially issuable upon conversion of the Shares have been duly authorized and reserved for issuance and, when issued and delivered upon conversion of the Shares, the shares of Common Stock will be duly and validly issued and fully paid and non-assessable;
(xi) none of the issuance and sale of the Shares, the issuance of the Common Stock upon the conversion of the Shares or the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach of, or constitute a default under (1) the certificate of incorporation or by-laws of the Company, each as amended to date, (2) the terms of any indenture or other material agreement or instrument known to such counsel and to which the Company or the Principal Subsidiary Bank is a party or bound, or (3) any order, law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Principal Subsidiary Bank;
(xii) such counsel is without knowledge of any rights to the registration of securities of the Company under the Registration Statement which have not been waived by the holders of such rights or which have not expired by reason of lapse of time following notification of the Company's intention to file the Registration Statement; and
(xiii) the Company has filed a preliminary listing application and all required supporting documents with respect to the Shares with the NYSE and such counsel has received no information stating that the Shares will not be authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution. In rendering such opinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no view as to portions of the Registration Statement, the Disclosure Package, or the Prospectus consisting of financial statements and other financial, accounting and statistical information and it has not independently verified, is not passing upon and assumes no responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package, or the Prospectus or any amendment or supplement thereto (other than as stated in (v) above), it has no reason to believe that such remaining portions of the Registration Statement or any amendment thereto as of the time it became effective, as of the Initial Sale Time or as of the date of such opinion, contained any untrue statement of a material fact or omitted to state any material fact required to be stated 12 therein or necessary to make the statements therein not misleading or that, subject to the foregoing with respect to financial statements and other financial, accounting and statistical information, the Disclosure Package, taken as a whole, as of the Initial Sale Time, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statement therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, as amended or supplemented, as of its date or as of the date of such opinion contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel also need not pass upon nor assume any responsibility for ascertaining whether or when any of the information contained in each Disclosure Package was conveyed to any purchaser of the Shares. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of North Carolina, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, upon the opinion of counsel to the Underwriters, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriters; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.
(c) The Representative shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Initial Shares, the Registration Statement, the Disclosure Package and the Prospectus and any other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representative a certificate of the Company, signed by any Senior Vice President or Treasurer or any other authorized officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and this Agreement and they are without knowledge that:
(i) the representations and warranties of the Company in this Agreement are not true and correct with the same force and effect as though expressly made at and as of the Closing Date and the Company has not performed or complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) any stop order suspending the effectiveness of the Registration Statement has been issued or any proceedings for that purpose have been instituted or threatened by the Commission; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus, there has been any material adverse change or any development involving a prospective material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not 13 arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(e) At the time this Agreement is executed, PricewaterhouseCoopers LLP shall have furnished to the Representative a letter or letters (which may refer to letters previously delivered to one or more of the Representative), dated as of the date of this Agreement, in form and substance satisfactory to the Representative, confirming that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) They are an independent registered public accounting firm with respect to the Company within the meaning under the Securities Act and the applicable rules and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (United States).
(ii) In their opinion, the consolidated financial statements of the Company and its subsidiaries audited by them and included or incorporated by reference in the Registration Statement, the preliminary prospectus and the Prospectus comply as to form in all material respects with the applicable accounting requirements under the Securities Act and the Exchange Act and the related rules and regulations adopted by the Commission.
(iii) On the basis of procedures (but not an audit in accordance with generally accepted auditing standards) consisting of:
(a) Reading the minutes of the meetings of the stockholders, the board of directors, executive committee and audit committee of the Company and the boards of directors of the Principal Subsidiary Bank as set forth in the minute books through a specified date not more than five business days prior to the date of delivery of such letter;
(b) Performing the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Accounting Standards No. 100, Interim Financial Information, on the unaudited condensed consolidated interim financial statements of the Company a
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date Securities and the Option Shares on any Additional Closing DateSecurities, as the case may be, will shall be subject to the accuracy of the representations and warranties on the part of the Company Transaction Entities contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to Applicable Time, the Closing Date (including the filing and each Date of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing DateDelivery, as the case may beif any, and pursuant to Section 3 hereof, to the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No On the Closing Date, (i) the Registration Statement shall have been filed by the Company with the Commission not earlier than three years prior to the date hereof and became effective upon filing in accordance with Rule 462(e) of the 1933 Act Regulations and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, Statement shall have been issued and no under the 1933 Act or proceedings for that purpose shall have been instituted therefor initiated or threatened by the SEC; Commission, and any request on the Final part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters, and no notice of objection of the Commission to the use of such form of registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the 1933 Act Regulations has been received by the Company, (ii) each preliminary prospectus and the Prospectus shall have been filed with the SEC pursuant to Commission in the manner and within the time period required by Rule 424(b) under without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the Securities Act not later than requirements of Rule 430B), and no order preventing or suspending the close use of business on any preliminary prospectus or the second business day following Prospectus shall have been issued by the execution and delivery Commission or the securities authority of this Agreement; and any jurisdiction, (iii) any material required to be filed by the Company pursuant to Rule 433(d) under of the Securities 1933 Act Regulations shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule 433, (iv) the Company shall have paid the required Commission filing fees relating to the Firm Securities within the time period required by Rule 433 under 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b), and (v) there shall not have come to your attention any facts that would cause you to believe that the General Disclosure Package or the Prospectus, at the time it was, or was required to be, delivered or made available to purchasers of the Securities, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading.
(b) The Company shall have requested and caused Dentons US LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date (or the applicable Date of Delivery, as the case may be) and addressed to the Representatives, to the matters attached as Exhibit A hereto. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the States of Texas, New York, Maryland or Delaware (to the extent limited to Delaware corporate laws) or the federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company or the general partner of the Operating Partnership and public officials. Such opinion shall also cover any amendments or supplements thereto at the Closing Date (or the applicable Date of Delivery, as the case may be). In addition, Dentons US LLP shall state that, although such counsel has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the General Disclosure Package or the Prospectus, no facts have come to such counsel’s attention that have caused such counsel to believe that (i) the Registration Statement or any amendment thereto, at the time of filing of the Company’s Annual Report on Form 10-K or as of the “new effective date” with respect to the Underwriters and the Securities pursuant to, and within the meaning of, Rule 430B(f)(2), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus, or any amendment or supplement thereto, as of their respective issue dates or at the Closing Date or the applicable Date of Delivery, as the case may be, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements, related notes and schedules and other financial information included or incorporated by reference therein or omitted therefrom, as to which such counsel need express no statement). With respect to statements contained in the General Disclosure Package, any statement contained in any of the constituent documents that are also part of the General Disclosure Package shall be deemed to be modified or superseded to the extent that any information contained in subsequent constituent documents modifies or replaces such statement.
(c) The Representatives shall have received from Sidley Austin LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date (or the applicable Date of Delivery, as the case may be) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the disclosure in the Registration Statement, the General Disclosure Package and the Prospectus and other related matters as the Representatives may reasonably require, and the Transaction Entities shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. In rendering such opinion, such counsel may rely, as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of responsible officers of the Company or the general partner of the Operating Partnership and public officials. In addition, in rendering such opinion, such counsel may rely on and assume the accuracy of an opinion of Dentons US LLP, counsel for the Company, dated as of the Closing Date (or the applicable Date of Delivery, as the case may be), with respect to matters of Maryland law.
(d) Each of the Company and the Operating Partnership shall have furnished to the Representatives a certificate, signed by the Chairman of the Board or President and the principal financial or accounting officer of the Company on behalf of the Company, for itself and as the sole member of the general partner of the Operating Partnership, dated the Closing Date (or the applicable Date of Delivery, as the case may be), to the effect that the signers of such certificate have carefully examined the Registration Statement, the General Disclosure Package and the Prospectus and any amendments or supplements to the foregoing, as well as this Agreement, and that:
(i) the representations and warranties of the Transaction Entities in this Agreement are true and correct on and as of the Closing Date (or the applicable Date of Delivery, as the case may be) with the same effect as if made on the Closing Date (or such Date of Delivery, as the case may be) and the Transaction Entities have complied with all the agreements and satisfied all the conditions on their part to be performed or satisfied at or prior to the Closing Date (or such Date of Delivery, as the case may be);
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or, to the Company’s knowledge, are threatened by the Commission, no notice of objection of the Commission to the use of such form of registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the 1933 Act Regulations has been received by the Company and no order preventing or suspending the use of any preliminary prospectus or the Prospectus shall have been issued by the Commission or the securities authority of any jurisdiction; and
(iii) since the date of the most recent financial statements included or incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus (for the avoidance of doubt, exclusive of any amendment or supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the General Disclosure Package and the Prospectus (for the avoidance of doubt, exclusive of any amendment or supplement thereto).
(e) At the date hereof, the Representatives shall have received a letter from Ernst & Young LLP dated such date, in form and substance reasonably satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus.
(f) On the Closing Date (or the applicable Date of Delivery, as the case may be), the Representatives shall have received a letter, dated the Closing Date (or such Date of Delivery, as the case may be), from Ernst & Young LLP to the effect that they reaffirm the statements made in the applicable letter furnished pursuant to subsection (e) of this Section 6, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date (or such Date of Delivery, as the case may be).
(g) Subsequent to the date hereof or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there shall not have been (i) any change or decrease specified in the letter or letters referred to in subsection (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business, assets, prospects or properties of the Transaction Entities and the 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 General Disclosure Package and the Prospectus, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Securities as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus (for the avoidance of doubt, exclusive of any amendment or supplement thereto), or (iii) any downgrading in, or withdrawal of, the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the 1934 Act), or any public announcement that any such organization has under surveillance or review its rating of any such securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading action, of such rating), (iv) any suspension or material limitation by the Commission of trading in the Common Stock or trading in securities generally on the NYSE or any setting of minimum or maximum prices on such Exchange, or maximum ranges of prices have been required, by such Exchange or by such system or by order of the Commission, FINRA or any other governmental authority, (v) any banking moratorium declared either by Federal or New York State authorities, (vi) any outbreak or significant escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis or any significant change in national or international political, financial or economic condition, the effect of which on financial markets is such as to make it, in the judgment of the Representatives, impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the General Disclosure Package and the Prospectus (for the avoidance of doubt, exclusive of any amendment or supplement thereto) or (vii) the enactment, publication, decree or other promulgation of any statute, regulation, rule or order of any court or other governmental authority which in the Representatives’ opinion materially and adversely affects or may materially and adversely affect the business or operations of the Company.
(h) On or prior to the Closing Date, the Representatives shall have received lock-up agreements substantially in the form of Exhibit B hereto (the “Lock-up Agreements”) from each of the executive officers and directors listed on Schedule III hereof.
(i) On the Closing Date, the Securities shall have been approved for listing on the NYSE, subject only to official notice of issuance.
(j) On the Closing Date (or the applicable Date of Delivery, as the case may be), counsel for the Underwriters shall have been furnished with such other documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Transaction Entities in connection with the issuance and sale of the Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters.
(k) Prior to the Closing Date (or the applicable Date of Delivery, as the case may be), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. Any certificate or document signed by any officer or representative of the Transaction Entities and delivered to the Underwriters, or to counsel for the Underwriters, shall be deemed a representation and warranty by each of the Transaction Entities to the Underwriters as to the statements made therein. The Transaction Entities will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the Closing Date (or the applicable Date of Delivery, as the case may be) or otherwise. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall n
Appears in 1 contract
Sources: Underwriting Agreement (American Campus Communities Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing 9 Date or and any Additional Option Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate certificates furnished pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No For the period from and after effectiveness of this Agreement and prior to the Closing Date and any Option Closing Date:
(i) no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under post-effective amendment to the Securities Act that would prevent its useRegistration Statement, shall have been issued be in effect and no proceedings for that such purpose shall have been instituted or threatened by the SEC; Commission, and the Final Prospectus Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to use of the automatic shelf registration statement form (unless the Shares are duly registered in the manner contemplated by Rule 401(g)(2) to the satisfaction of the Representatives prior to the Closing Date);
(ii) the Company shall have been filed the preliminary prospectus and the Prospectus with the SEC pursuant to Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430B, and such post-effective amendment shall have become effective (if not later than automatically effective under the close rules of business on the second business day following Commission);
(iii) the execution and delivery of this Agreement; Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act Act, shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule or, to the extent applicable, under Rule 164(b);
(iv) the Financial Industry Regulatory Authority, Inc. ("FINRA") shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements;
(v) the Shares to be delivered on the Closing Date, or Option Closing Date, as the case may be, shall have been approved for listing on the NYSE, subject to official notice of issuance; and
(vi) the lock-up agreements, each substantially in the form of Exhibit A hereto, between you and certain officers of the Company relating to sales and certain other dispositions of shares of capital stock of the Company or certain other securities, delivered to you on or before the date hereof , shall be in full force and effect on the Closing Date, and any Option Closing Date, as the case may be.
(b) The Company shall have furnished to the Representatives the opinion of McGuireWoods LLP, counsel for the Company, dated the Closing Date and any Option Closing Date, to the effect of paragraphs (i) and (v) through (xii) below, and the opinion of the General Counsel of the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular 10 securities law matter for the Company), dated the Closing Date or such Option Closing Date, to the effect of paragraphs (ii) through (iv) below:
(i) the Company is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware, has the corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and the Prospectus, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the "Principal Subsidiary Bank") is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) each of the Company and the Principal Subsidiary Bank is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the Company or the Principal Subsidiary Bank, as the case may be, is required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock of the Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and (except as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except as otherwise set forth in the Disclosure Package and the Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors' qualifying shares) are owned, directly or indirectly, by Rule 433 the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens or encumbrances;
(iv) such counsel is without knowledge that there is (1) any pending or threatened action, suit or proceeding before or by any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement, the Disclosure Package or the Prospectus which is omitted or not adequately disclosed therein, or (2) any franchise, contract or other document of a character required to be described in the Registration Statement, the Disclosure Package or the Prospectus, or to be filed as an exhibit to the Registration Statement, which is not so described or filed as required;
(v) the Shares conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Prospectus;
(vi) the Registration Statement became effective under the Securities Act automatically upon its filing; no stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment to the Registration Statement, has been issued, and such counsel is without knowledge that any proceeding for that purpose has been instituted or threatened, or that the Company has received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form; and the Registration Statement, the Disclosure Package and the Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements under the Securities Act and the Exchange Act; 11
(vii) this Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by you, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in this Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and similar bank regulatory powers and to the application of principles of public policy;
(viii) no consent, approval, authorization or order of any court or governmental agency or body in the United States is necessary or required on behalf of the Company for the consummation of the transactions contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the blue sky, state securities or insurance or similar laws of the United States in connection with the purchase and distribution of the Shares by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(ix) the Shares have been duly authorized and, when issued and delivered against payment therefor pursuant to this Agreement, the Shares will be duly and validly issued and fully paid and non-assessable;
(x) neither the issuance and sale of the Shares, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach of, or constitute a default under (1) the certificate of incorporation or by-laws of the Company, each as amended to date, (2) the terms of any indenture or other material agreement or instrument known to such counsel and to which the Company or the Principal Subsidiary Bank is a party or bound, or (3) any order, law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Principal Subsidiary Bank;
(xi) no stockholder of the Company is entitled to any preemptive rights with respect to the issuance of the Shares pursuant to the Company's certificate of incorporation and bylaws or the Delaware General Corporation Law; and
(xii) such counsel is without knowledge of any rights to the registration of securities of the Company under the Registration Statement which have not been waived by the holders of such rights or which have not expired by reason of lapse of time following notification of the Company's intention to file the Registration Statement. In rendering such opinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no view as to portions of the Registration Statement, the Disclosure Package, or the Prospectus consisting of financial statements and other financial, accounting and statistical information and it has not independently verified, is not passing upon and assumes no responsibility for, the accuracy, completeness or fairness of the statements 12 contained in the Registration Statement, the Disclosure Package, or the Prospectus or any amendment or supplement thereto (other than as stated in (v) above), it has no reason to believe that such remaining portions of the Registration Statement or any amendment thereto as of the time it became effective, as of the Initial Sale Time or as of the date of such opinion, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that, subject to the foregoing with respect to financial statements and other financial, accounting and statistical information, the Disclosure Package, taken as a whole, as of the Initial Sale Time, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statement therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, as amended or supplemented, as of its date or as of the date of such opinion contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel also need not pass upon nor assume any responsibility for ascertaining whether or when any of the information contained in each Disclosure Package was conveyed to any purchaser of the Shares. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of North Carolina, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, upon the opinion of counsel to the Underwriters, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriters; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.
(c) The Representatives shall have received from Morrison & Foerster LLP, counsel for the Under▇▇▇▇▇▇▇, su▇▇ ▇▇▇▇▇on or opinions, dated the Closing Date and any Option Closing Date, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package and the Prospectus and any other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by any Senior Vice President or Treasurer or any other authorized officer of the Company, dated the Closing Date and any Option Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and this Agreement and they are without knowledge that:
(i) the representations and warranties of the Company in this Agreement are not true and correct with the same force and effect as though expressly made at and as of the Closing Date or such Option Closing Date and the Company has not performed or complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date or such Option Closing Date;
(ii) any stop order suspending the effectiveness of the Registration Statement has been issued or any proceedings for that purpose have been instituted or threatened by the Commission; and 13
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus, there has been any material adverse change or any development involving a prospective material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(e) At the time this Agreement is executed, PricewaterhouseCoopers LLP shall have furnished to the Representatives a letter or letters, dated as of the date of this Agreement, in form and substance satisfactory to the Representatives, confirming that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) They are an independent registered public accounting firm with respect to the Company within the meaning under the Securities Act and the applicable rules and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (United States).
(ii) In their opinion, the consolidated financial statements of the Company and its subsidiaries audited by them and included or incorporated by reference in the Registration Statement, the preliminary prospectus and the Prospectus comply as to form in all material respects with the applicable accounting requirements under the Securities Act and the Exchange Act and the related rules and regulations adopted by the Commission.
(iii) On the basis of procedures (but not an audit in accordance with generally accepted auditing standards) consisting of:
(a) Reading the minutes of the meetings of the stockholders, the board of directors, executive committee and audit committee of the Company and the boards of directors of the Principal Subsidiary Bank as set forth in the minute books through a specified date not more than five business days prior to the date of delivery of such letter;
(b) Performing the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Accounting Standards No. 100, Interim Financial Information, on the unaudited c
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of Execution Time and the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d), shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement or any notice under Rule 401(g)(2) under the Securities Act that would prevent objecting to its use, use shall have been issued and no proceedings for that purpose shall have been instituted or threatened by the SEC; the Final Prospectus threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) the Registration Statement is an “automatic shelf registration statement” (as defined under Rule 405) that has been filed with the SEC Commission not earlier than three years prior to the date of the Underwriting Agreement; the Indenture has been qualified under the Trust Indenture Act; each Preliminary Prospectus and the Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) under the Securities Act not later specified in such opinion on the date specified therein; and no order suspending the effectiveness of the Registration Statement has been issued, no notice of objection of the Commission to the use of such Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or in connection with the offering of the Securities is pending or, to the knowledge of such counsel, threatened by the Commission; and the Registration Statement and the Final Prospectus (other than the close financial statements and other financial information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder.
(ii) each of the Company and the Significant Subsidiaries is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business on as described in the second Disclosure Package and the Final Prospectus, and is duly qualified to do business day following as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except where such failure to be so qualified would not result in a Material Adverse Effect;
(iii) the Securities and the Indenture conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Final Prospectus;
(iv) the Indenture has been duly authorized, executed and delivered, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law);
(v) the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture;
(vi) to such counsel’s knowledge, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property, of a character required to be disclosed pursuant to Item 103 of Regulation S-K in the Company’s periodic reports filed under the Exchange Act which is not adequately disclosed in any Preliminary Prospectus and the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit to the Registration Statement, which is not described or filed as required, and to the extent that they constitute matters of law, summaries of legal matters or legal conclusions, the statements set forth in the Prospectus under the caption “Certain U.S. Federal Income Tax Considerations” are accurate in all material respects and fairly present the information provided;
(vii) this Agreement has been duly authorized, executed and delivered by the Company;
(viii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Final Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended;
(ix) no consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required to be obtained by the Company in connection with the transactions contemplated herein, except for the registration of the Securities under the Securities Act, the qualification of the Indenture under the Trust Indenture Act and such consents, approvals, authorizations, orders and registrations or qualifications as may be required under the Blue sky laws of any U.S. state jurisdiction or the securities laws of any foreign jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters;
(x) neither the execution and delivery of the Indenture, the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Significant Subsidiary pursuant to, (i) the charter or by-laws of the Company or any Significant Subsidiary, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument known to such counsel to which the Company or any Significant Subsidiary is a party or bound or to which its or their property is subject (except for any such breach, violation or default that could not adversely affect in a material respect the ability of the Company to perform its obligations under this Agreement, or would otherwise be material in the context of the sale of the Securities) or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any Significant Subsidiary or any of their respective properties; and
(xi) to such counsel’s knowledge, no holders of securities of the Company have rights to the registration of such securities under the Registration Statement. Such counsel shall also state that they have participated in conferences with representatives of the Company and with representatives of its independent accountants and counsel at which conferences the contents of the Registration Statement, the Disclosure Package and the Prospectus and any amendment and supplement thereto and related matters were discussed and, although such counsel assumes no responsibility for the accuracy, completeness or fairness of the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto (except as expressly provided above), no facts have come to such counsel’s attention that cause such counsel to believe that (i) at the Effective Date immediately preceding the Execution Time, the Registration Statement contained any untrue statement of a material fact or omitted to state a material fact required to be filed stated therein or necessary to make the statements therein not misleading, (ii) the Disclosure Package, at the Execution Time, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iii) the Prospectus or any amendment or supplement thereto, as of its date and the Closing Date, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than, in each case, the financial statements, related schedules and other financial data included or incorporated by reference therein, as to which such counsel need express no belief). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are reasonably satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this Section 7(b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, solely in their respective capacities as such, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Final Prospectus and the Disclosure Package (exclusive of any supplements thereto after the Execution Time), there has been no Material Adverse Effect, except as set forth in or contemplated in the Final Prospectus and the Disclosure Package (exclusive of any supplements thereto after the Execution Time).
(e) The Company shall have requested and Deloitte & Touche LLP shall have furnished to the Representatives, at the Execution Time and at the Closing Date, “comfort” letters, dated as of the Execution Time and as of the Closing Date, respectively, in form and substance reasonably satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Securities Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have audited the consolidated financial information of the Company for the year ended January 3, 2009, in accordance with the standards of the Public Company Accounting Oversight Board (United States), and stating in effect that:
(i) in their opinion the audited financial statements included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus and reported on by them comply as to form with the applicable accounting requirements of the Securities Act and the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of their audit of the financial information for the year ended January 3, 2009, the Preliminary Prospectus and the Final Prospectus; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and audit committee of the Company; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to January 3, 2009, nothing came to their attention which caused them to believe that:
(1) any audited financial statements of the Company included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus do not comply as to form with applicable accounting requirements of the Securities Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in the annual report on Form 10-K under the Exchange Act; and said audited financial statements are not in conformity with GAAP;
(2) with respect to the period subsequent to January 3, 2009, there were any changes at the “cut-off date” specified therein (which date shall be reasonably satisfactory to the Representatives) in the long-term debt of the Company, in the common stock of the Company or decreases in the stockholders’ equity of the Company or decrease in consolidated net current assets of the Company as compared with the amounts shown on the January 3, 2009 consolidated balance sheet included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, or for the period from January 3, 2009 to the “cut-off date” specified therein (which date shall be reasonably satisfactory to the Representatives), there were any decreases, as compared with the corresponding period in the preceding year; in consolidated net revenues or in total or per share amounts of net income of the Company, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company pursuant as to Rule 433(dthe significance thereof unless said explanation is not deemed necessary by the Representatives; and
(iii) under the Securities Act shall they have been filed with the SEC within the applicable time periods prescribed for such filings by Rule 433 under the Securities Act.performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information deriv
Appears in 1 contract
Sources: Underwriting Agreement (SNAP-ON Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date Securities and the Option Shares on any Additional Closing DateSecurities, as the case may be, will shall be subject to the accuracy of the representations and warranties (in each case, subject to the qualifications, if any, described therein) on the part of the Company and the Operating Partnership contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to Applicable Time, the Closing Date (including the filing and each Date of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing DateDelivery, as the case may beif any, and pursuant to Section 3 hereof, to the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No On the Closing Date, (i) the Registration Statement has become effective and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, Statement shall have been issued and no under the 1933 Act or proceedings for that purpose shall have been instituted therefor initiated or threatened by the SEC; Commission, and any request on the Final part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters, (ii) each preliminary prospectus and the Prospectus shall have been filed with the SEC pursuant to Commission in the manner and within the time period required by Rule 424(b) under without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the Securities Act not later than requirements of Rule 430B), and no order preventing or suspending the close use of business on any preliminary prospectus or the second business day following Prospectus shall have been issued by the execution and delivery Commission or the securities authority of this Agreement; and any jurisdiction, (iii) any material required to be filed by the Company pursuant to Rule 433(d) under of the Securities 1933 Act Regulations shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule 433, and (iv) there shall not have come to the attention of the Representatives any facts that would cause the Representatives to believe, after consultation with counsel, that the General Disclosure Package or the Prospectus, at the time it was, or was required to be, delivered or made available to purchasers of the Securities, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading.
(b) The Company shall have requested and caused Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date (or the applicable Date of Delivery, as the case may be) and addressed to the Representatives, to the matters attached as Exhibit A hereto. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware (to the extent limited to Delaware corporate laws) or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. Such opinion shall also cover any amendments or supplements thereto at the Closing Date (or the applicable Date of Delivery, as the case may be). The Underwriters acknowledge that the law firm of ▇▇▇▇▇▇▇ LLP, special Maryland counsel to the Company, is satisfactory for the purposes of this Section 6(b). In addition, Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC shall state that, although such counsel has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the General Disclosure Package or the Prospectus, no facts have come to such counsel’s attention that have caused such counsel to believe that (i) the Registration Statement or any amendment thereto, at the time the Registration Statement or any such amendment became effective, or as of the “new effective date” with respect to the Underwriters and the Securities pursuant to, and within the meaning of, Rule 430B(f)(2), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus, or any amendment or supplement thereto, as of their respective issue dates or at the Closing Date or the applicable Date of Delivery, as the case may be, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements, schedules and other financial information included or incorporated by reference therein or excluded therefrom, as to which such counsel need express no statement).
(c) The Representatives shall have received the favorable opinion, dated the Closing Date (or the applicable Date of Delivery, as the case may be), of ▇▇▇▇▇▇▇ LLP, special Maryland counsel of the Company, to the matters attached as Exhibit B hereto.
(d) The Representatives shall have received from Sidley Austin llp, counsel for the Underwriters, such opinion or opinions, dated the Closing Date (or the applicable Date of Delivery, as the case may be) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the disclosure in the Registration Statement, the General Disclosure Package and the Prospectus and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. In rendering such opinion, such counsel may rely, as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of responsible officers of the Company and public officials. In addition, in rendering such opinion, such counsel may rely on and assume the accuracy of the opinion of ▇▇▇▇▇▇▇ LLP, special Maryland counsel to the Company, dated as of the Closing Date (or the applicable Date of Delivery, as the case may be), with respect to matters of Maryland law.
(e) The Underwriters shall have received a certificate of the president or an executive vice president of the Company, on behalf of the Company and as sole stockholder of Education Realty OP GP, Inc. (general partner of the Operating Partnership), and of the chief financial officer or chief accounting officer of the Company, on behalf of the Company and as sole stockholder of Education Realty OP GP, Inc. (general partner of the Operating Partnership), dated the Closing Date (or the applicable Date of Delivery, as the case may be), to the effect that the signers of such certificate have carefully examined the Registration Statement, the General Disclosure Package and the Prospectus and any amendments or supplements to the foregoing, as well as this Agreement, and that:
(i) the representations and warranties (in each case, subject to the qualifications, if any, described therein) of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date (or the applicable Date of Delivery, as the case may be) with the same effect as if made on the Closing Date (or such Date of Delivery, as the case may be) and the Company and the Operating Partnership have complied with all the agreements and satisfied all the conditions on their part to be performed or satisfied at or prior to the Closing Date (or such Date of Delivery, as the case may be);
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or, to the Company’s knowledge, are threatened by the Commission, and no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued by the Commission or the securities authority of any jurisdiction; and
(iii) since the date of the most recent financial statements included or incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse effect on the condition (financial or otherwise), business, earnings, properties, assets or prospects of the Company or the Operating Partnership and the Subsidiaries, taken as a whole, except as set forth in or contemplated in the Registration Statement, the General Disclosure Package and the Prospectus (excluding any documents incorporated or deemed to be incorporated by reference therein after the date hereof).
(f) At the date hereof, the Representatives shall have received a letter from Deloitte & Touche LLP dated such date, in form and substance reasonably satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus.
(g) On the Closing Date (or the applicable Date of Delivery, as the case may be), the Representatives shall have received a letter, dated the Closing Date (or such Date of Delivery, as the case may be), of Deloitte & Touche LLP, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section 6, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date (or such Date of Delivery, as the case may be).
(h) Subsequent to the date hereof or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there shall not have been (i) any change or decrease specified in the letter referred to in Section 6(f) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business, assets, prospects or properties of the Company or the Operating Partnership and the Subsidiaries taken as a whole, except as set forth in or contemplated in the Registration Statement, the General Disclosure Package and the Prospectus, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus, (iii) any downgrading in, or withdrawal of, the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 433 436(g) under the 1933 Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating), (iv) any suspension or material limitation by the Commission of trading in the Common Stock or trading in securities generally on the NYSE or any setting of minimum or maximum prices on such exchange, or maximum ranges of prices have been required, by such exchange or by such system or by order of the Commission, FINRA or any other governmental authority, (v) any banking moratorium declared either by federal or New York State authorities or (vi) any outbreak or significant escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis or any significant change in national or international political, financial or economic condition, the effect of which on financial markets is such as to make it, in the judgment of the Representatives, impractical or inadvisable to proceed with the offering or delivery of the Securities Actas contemplated by the General Disclosure Package and the Prospectus.
(i) On or prior to the Closing Date, the Representatives shall have received lock-up agreements substantially in the form of Exhibit C hereto (the “Lock-up Agreements”) from each of the executive officers and directors listed on Schedule III hereof.
(j) On the Closing Date, the Securities shall have been approved for listing on the NYSE, subject only to official notice of issuance.
(k) On the Closing Date (or the applicable Date of Delivery, as the case may be), counsel for the Underwriters shall have been furnished with such other documents as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company or the Operating Partnership in connection with the issuance and sale of the Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters.
(l) Prior to the Closing Date (or the applicable Date of Delivery, as the case may be), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. Any certificate or document signed by any officer or representative of the Company or the Operating Partnership and delivered to any Underwriter, or to counsel for the Underwriters, shall be deemed a representation and warranty by each of the Company and the Operating Partnership, as to matters set forth therein, to each Underwriter as to the statements made therein. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the Closing Date (or the applicable Date of Delivery, as the case may be) or otherwise. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives, this Agreement and all obligations of the Underwriters hereunder may be terminated at, or at any time prior to, the Closing Date or the applicable Date of Delivery, as the case may be, by the Representatives, and such termination shall be without liability of any party to any other party except as provided in Section 7 hereof and except that Sections 1 and 8 hereof shall survive any such termination and remain in full force and effect. Notice of such termination shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the offices of Sidley Austin llp, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on the Closing Date (or the applicable Date of Delivery, as the case may be).
Appears in 1 contract
Sources: Underwriting Agreement (Education Realty Trust, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date Underwritten Securities and the Option Shares on any Additional Closing DateSecurities, as the case may be, will shall be subject to the accuracy of the representations and warranties on the part of the Company Transaction Entities contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to Applicable Time, the Closing Date (including the filing and each Date of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing DateDelivery pursuant to Section 3 hereof, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No On the Closing Date, (i) the Registration Statement has become effective and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, Statement shall have been issued and no under the 1933 Act or proceedings for that purpose shall have been instituted therefor initiated or threatened by the SEC; Commission, and any request on the Final part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters, (ii) each preliminary prospectus and the Prospectus containing the Rule 430B Information shall have been filed with the SEC pursuant to Commission in the manner and within the time period required by Rule 424(b) under without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the Securities Act not later than the close requirements of business on the second business day following the execution and delivery of this Agreement; and Rule 430B), (iii) any material required to be filed by the Company pursuant to Rule 433(d) under of the Securities 1933 Act Regulations shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule 433, (iv) the Company shall have paid the required Commission filing fees relating to the Underwritten Securities within the time period required by Rule 433 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b), and (v) there shall not have come to your attention any facts that would cause you to believe that the Prospectus, at the time it was required to be delivered or made available to purchasers of the Underwritten Securities, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading.
(b) The Company shall have requested and caused L▇▇▇▇ L▇▇▇▇▇▇ & S▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date (or the Date of Delivery, as the case may be) and addressed to the Representatives, to the matters attached as Exhibit A hereto. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the States of Texas, New York or Delaware (to the extent limited to Delaware corporate laws) or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company or the general partner of the Operating Partnership and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date (or the Date of Delivery, as the case may be). The Underwriters acknowledge that the law firm of V▇▇▇▇▇▇ LLP is satisfactory for the purposes of this Section 6(b). In addition, L▇▇▇▇ Liddell & S▇▇▇ LLP shall state that, although such counsel has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, no facts have come to such counsel’s attention that have caused such counsel to believe that (i) the Registration Statement or any amendment thereto, at the time of filing of the Company’s Annual Report or as of the “new effective date” with respect to the Underwriters of the Shares pursuant to, and within the meaning of, Rule 430B(f)(2) of the 1933 Act Regulations, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the General Disclosure Package, at the Applicable Time, when considered with the information agreed to in writing by the Company and the Underwriters as the information to be conveyed orally by the Underwriters to purchasers of the Shares at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Prospectus, or any amendment or supplement thereto, as of its date or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements, related notes and schedules and other financial and statistical information included or incorporated by reference therein or omitted therefrom, as to which such counsel need express no statement). With respect to statements contained in the General Disclosure Package, any statement contained in any of the constituent documents shall be deemed to be modified or superseded to the extent that any information contained in subsequent constituent documents modifies or replaces such statement.
(c) The Representatives shall have received the favorable opinion, dated the Closing Date (or the Date of Delivery, as the case may be), of V▇▇▇▇▇▇ LLP, special Maryland Counsel of the Company, to the matters attached as Exhibit B hereto. In rendering such opinions, such counsel may limit its opinions to the laws of the State of Maryland, and matters specifically governed thereby. In rendering such opinion, such counsel may rely, as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of responsible officers of the Company and public officials.
(d) The Representatives shall have received from Sidley Austin llp, counsel for the Underwriters, such opinion or opinions, dated the Closing Date (or the Date of Delivery, as the case may be) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the disclosure in the Registration Statement, the General Disclosure Package and the Prospectus and other related matters as the Representatives may reasonably require, and the Transaction Entities shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. In rendering such opinion, such counsel may rely, as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of responsible officers and general partner of the Company and Operating Partnership, respectively, and public officials. In addition, in rendering such opinion, counsel may rely on and assume the accuracy of an opinion of V▇▇▇▇▇▇ LLP, special Maryland counsel of the Company, dated as of the Closing Date (or the Date of Delivery, as the case may be), with respect to certain matters of Maryland law.
(e) Each of the Company and the Operating Partnership shall have furnished to the Representatives a certificate, signed by the Chairman of the Board or President and the principal financial or accounting officer of the Company on behalf of the Company and ACCHL, for itself and as general partner of the Operating Partnership, respectively, dated the Closing Date (or the Date of Delivery, as the case may be), to the effect that the signers of such certificate have carefully examined the Registration Statement, the General Disclosure Package, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Transaction Entities in this Agreement are true and correct on and as of the Closing Date (or the Date of Delivery, as the case may be) with the same effect as if made on the Closing Date (or the Date of Delivery, as the case may be) and the Transaction Entities have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date (or the Date of Delivery, as the case may be);
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the General Disclosure Package or the Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), business, earnings, properties, assets or prospects of the Transaction Entities and the 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(f) At the date hereof, the Representatives shall have received a letter from Ernst & Young LLP dated such date, in form and substance reasonably satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus.
(g) On the Closing Date (or the Date of Delivery, as the case may be), the Representatives shall have received a letter, dated the Closing Date (or the Date of Delivery, as the case may be), of Ernst & Young LLP to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date (or the Date of Delivery, as the case may be).
(h) Subsequent to the date hereof or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business, assets, prospects or properties of the Transaction Entities and the 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 General Disclosure Package and the Prospectus the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any supplement thereto), the General Disclosure Package and the Prospectus (exclusive of any supplement thereto), (iii) any downgrading in, or withdrawal of, the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 1933 Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating), (iv) any significant change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the sole judgment of the Representatives, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Securities, whether in the primary market or in respect of dealings in the secondary market, (v) any suspension or material limitation by the Commission of trading in the Common Stock or trading in securities generally on the NYSE or any setting of minimum or maximum prices on such Exchange, or maximum ranges of prices have been required, by such Exchange or by such system or by order of the Commission, the NASD or any other governmental authority, (vi) any banking moratorium declared either by Federal or New York State authorities, (vii) any outbreak or significant escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis or any significant change in national or international political, financial or economic condition, the effect of which on financial markets is such as to make it, in the sole judgment of the Representatives, impractical or inadvisable to proceed with the offering or delivery of the Securities Actas contemplated by the Prospectus (exclusive of any supplement thereto), (viii) the enactment, publication, decree or other promulgation of any statute, regulation, rule or order of any court or other governmental authority which in the Representatives’ opinion materially and adversely affects or may materially and adversely affect the business or operations of the Company or (ix) the taking of any action by any governmental body or agency in respect of its monetary or fiscal affairs which in the Representatives’ reasonable opinion has a material adverse effect on the securities markets in the United States.
(i) On or prior to the Closing Date, the Representatives shall have received lock-up agreements substantially in the form of Exhibit C hereto (the “Lock-up Agreements”) from each of the executive officers and directors listed on Schedule III hereof.
(j) The NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(k) On the Closing Date, the Securities shall have been approved for listing on the NYSE, subject only to official notice of issuance.
(l) On the Closing Date (or the Date of Delivery, as the case may be), counsel for the Underwriters shall have been furnished with such other documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Transaction Entities in connection with the issuance and sale of the Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters.
(m) Prior to the Closing Date (or the Date of Delivery, as the case may be), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters. Any certificate or document signed by any officer or representative of the Transaction Entities and delivered to the Underwriters, or to counsel for the Underwriters, shall be deemed a representation and warranty by each of the T
Appears in 1 contract
Sources: Underwriting Agreement (American Campus Communities Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date Securities and the Option Shares on any Additional Closing DateSecurities, as the case may be, will shall be subject to the accuracy of the representations and warranties on the part of the Company Transaction Entities contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to Applicable Time, the Closing Date (including the filing and each Date of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing DateDelivery, as the case may beif any, and pursuant to Section 3 hereof, to the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No On the Closing Date, (i) the Registration Statement shall have been filed by the Company with the Commission not earlier than three years prior to the date hereof and became effective upon filing in accordance with Rule 462(e) of the 1933 Act Regulations and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, Statement shall have been issued and no under the 1933 Act or proceedings for that purpose shall have been instituted therefor initiated or threatened by the SEC; Commission, and any request on the Final part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters, and no notice of objection of the Commission to the use of such form of registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the 1933 Act Regulations has been received by the Company, (ii) each preliminary prospectus and the Prospectus shall have been filed with the SEC pursuant to Commission in the manner and within the time period required by Rule 424(b) under without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the Securities Act not later than requirements of Rule 430B), and no order preventing or suspending the close use of business on any preliminary prospectus or the second business day following Prospectus shall have been issued by the execution and delivery Commission or the securities authority of this Agreement; and any jurisdiction, (iii) any material required to be filed by the Company pursuant to Rule 433(d) under of the Securities 1933 Act Regulations shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule 433, (iv) the Company shall have paid the required Commission filing fees relating to the Firm Securities within the time period required by Rule 433 under 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b), and (v) there shall not have come to your attention any facts that would cause you to believe that the General Disclosure Package or the Prospectus, at the time it was, or was required to be, delivered or made available to purchasers of the Securities, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading.
(b) The Company shall have requested and caused ▇▇▇▇▇ Lord ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date (or the applicable Date of Delivery, as the case may be) and addressed to the Representatives, to the matters attached as Exhibit A hereto. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the States of Texas, New York or Delaware (to the extent limited to Delaware corporate laws) or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company or the general partner of the Operating Partnership and public officials. Such opinion shall also cover any amendments or supplements thereto at the Closing Date (or the applicable Date of Delivery, as the case may be). The Underwriters acknowledge that the law firm of ▇▇▇▇▇▇▇ LLP is satisfactory for the purposes of this Section 6(b). In addition, ▇▇▇▇▇ Lord Bissell & Liddell LLP shall state that, although such counsel has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the General Disclosure Package or the Prospectus, no facts have come to such counsel’s attention that have caused such counsel to believe that (i) the Registration Statement or any amendment thereto, at the time of filing of the Company’s Annual Report or as of the “new effective date” with respect to the Underwriters and the Securities Act.pursuant to, and within the meaning of, Rule 430B(f)(2), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading,
Appears in 1 contract
Sources: Underwriting Agreement (American Campus Communities Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of Execution Time and the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No If filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(a) hereof, any other material required to be filed by the Company pursuant to Rule 433(d) shall have been filed in the manner and within the time period required by Rule 433 and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened threatened.
(b) The Company shall have furnished to the Representatives the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Managing Chief Counsel and Corporate Secretary of the Company, dated the Closing Date (which opinion may be relied upon by Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Underwriters, as to matters of Pennsylvania law), to the effect that:
(i) the Company is a corporation duly incorporated and is presently subsisting as a corporation under the laws of the Commonwealth of Pennsylvania with all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, except for such power and authority the absence of which would not have a material adverse effect on the Company and its consolidated subsidiaries taken as a whole or materially and adversely affect its ability to perform its obligations under this Agreement, the Indenture and the Securities, and the Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended;
(ii) PNC Bank is validly organized and existing as a national banking association in good standing under the laws of the United States, with all requisite power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, except for such power and authority the absence of which would not have a material adverse effect on PNC Bank;
(iii) all the outstanding shares of capital stock of PNC Bank have been duly and validly authorized and issued and (except as provided in 12 U.S.C. § 55) are fully paid and nonassessable, and all outstanding shares of capital stock of PNC Bank are owned by the SEC; Company either directly or through wholly owned subsidiaries of the Company free and clear of any perfected security interest and, to the knowledge of such counsel after due inquiry, any other security interests, claims, liens or encumbrances;
(iv) the Company’s authorized equity capitalization, if set forth in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, is as set forth in the Final Prospectus shall and, if the Securities are to be listed on any stock exchange, authorization therefor has been given, subject to official notice of issuance and evidence of satisfactory distribution, or the Company has filed a preliminary listing application and all required supporting documents with respect to the Securities with such stock exchange and nothing has caused such counsel to believe that the Securities will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution and the satisfaction of other requirements which counsel reasonably believes will be satisfied in due course;
(v) the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, receivership, readjustment of debt, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally or general equitable principles (whether considered in a proceeding in equity or at law); and the Securities have been filed duly authorized and, when executed and authenticated in accordance with the SEC provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture, and enforceable against the Company in accordance with their terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, receivership, readjustment of debt, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally or general equitable principles (whether considered in a proceeding in equity or at law);
(vi) to the best knowledge of such counsel, there are no actions, suits, proceedings or investigations pending or threatened against the Company or PNC Bank in any court or before or by an arbitrator or governmental authority, of a character required to be disclosed in the Registration Statement which are not disclosed in the Pricing Disclosure Package and the Final Prospectus, and to the best of such counsel’s knowledge, there is no franchise, contract or other document of a character required to be described in the Registration Statement, the Pricing Disclosure Package or the Final Prospectus, or to be filed as an exhibit, which is not described or filed as required; and the statements included or incorporated in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus describing any legal proceedings or material contracts or agreements relating to the Company or any of its subsidiaries fairly summarize such matters in all material respects;
(vii) the Registration Statement has become effective under the Act; any required filing of the Basic Prospectus, any Preliminary Final Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) under has been made in the Securities Act not later than manner and within the close time period required by Rule 424(b); any required filing of business on the second business day following the execution and delivery of this Agreement; and any material required to be filed by the Company Issuer Free Writing Prospectus pursuant to Rule 433(d) has been made in the manner and within the time period required by Rule 433; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice under Rule 401(g)(2) that would prevent its use, has been issued, no proceedings for that purpose have been instituted or threatened, and the Registration Statement, the Pricing Disclosure Package and the Final Prospectus and each amendment thereof or supplement thereto made by the Company prior to the date of such opinion as of their respective issue dates (other than the financial statements and other financial information contained or incorporated therein, and that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification of Trustee (Form T-1) under the Trust Indenture Act, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of that Act and the Exchange Act and the respective rules and regulations thereunder; and nothing has come to the attention of such counsel that has caused such counsel to believe that at the Effective Date the Registration Statement contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; that the Pricing Disclosure Package as of the Applicable Time contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading or that the Final Prospectus as of its date and as of the Closing Date included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading except that such counsel does not express any opinion or belief as to (a) the financial statements or schedules or other data of a financial nature included or incorporated therein, (b) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification of Trustee (Form T-1) under the Trust Indenture Act, and (c) regulatory actions of the applicable regulatory authorities that are not otherwise disclosed by such regulatory authorities. In connection with the foregoing, the Underwriters acknowledge and understand that the character of determinations involved in the process of preparing the Registration Statement and the Final Prospectus (including any documents incorporated by reference) are such that such counsel need not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Final Prospectus (including any documents incorporated by reference) except as expressly set forth herein;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities Act by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(x) neither the issuance and sale of the Securities nor consummation of any other of the transactions contemplated herein nor the fulfillment of the terms hereof will: (A) violate any provision of the charter or by-laws of the Company or PNC Bank or (B) constitute a violation or breach of or default under any material provision of any material indenture or other material agreement or instrument known to such counsel and to which the Company or PNC Bank is a party, or (C) violate any judgment, order or decree applicable to the Company or PNC Bank of any court or federal or state regulatory or governmental agency having jurisdiction over the Company or PNC Bank; except in (B), or (C) above, with respect to violations, breaches or defaults that would not have a material adverse effect on the Company and its consolidated subsidiaries taken as a whole, or PNC Bank;
(xi) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, will not be an “investment company” or an entity “controlled” by an “investment company”, as such terms are defined in the Investment Company Act;
(xii) the Securities and the Indenture conform in all material respects to the descriptions thereof in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus; and
(xiii) the statements set forth in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus under the caption “Certain Terms of the Senior Notes”, taken together with the statements set forth in the Basic Prospectus under the caption “Description of Debt Securities of The PNC Financial Services Group, Inc.”, insofar as they purport to describe the provisions of the laws and documents referred to therein, fairly summarize in all material respects the matters described therein; In rendering such opinion, such counsel will opine only as to matters involving the application of the laws of the Commonwealth of Pennsylvania or the United States and may rely (A) as to matters involving the application of laws of any jurisdiction other than the Commonwealth of Pennsylvania or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are reasonably satisfactory to counsel for the Underwriters, except that it will not be required that such counsel obtain an opinion of New York counsel as to matters of New York law in order to render such opinion or that such counsel express an opinion as to matters arising under the laws of any jurisdiction other than the laws of the Commonwealth of Pennsylvania and matters of federal law arising under the laws of the United States of America, and (B) as to matters of fact, to the extent deemed proper, on certificates or representations of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have been filed received an opinion of McGuireWoods LLP, counsel to the Company, dated the Closing Date, substantially to the effect that:
(i) the discussion set forth in the Registration Statement, the Pricing Disclosure Package and the Final Prospectus under the caption “Material U.S. Federal Income Tax Consequences”, in so far as it relates to matters of United States federal income tax laws, subject to the qualifications, exceptions, assumptions and limitations described therein, fairly summarizes in all material respects the matters set forth therein.
(d) The Representatives shall have received from Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Underwriters, an opinion and disclosure letter, dated the Closing Date, with respect to the issuance and sale of the Securities, the Registration Statement, and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board, the President, a Vice Chairman of the Board or any Executive Vice President, Senior Vice President, Vice President or Assistant Vice President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Pricing Disclosure Package, the Final Prospectus, any supplement to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date, with the SEC within same effect as if made on the applicable time periods prescribed Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for such filings that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent consolidated financial statements included or incorporated by Rule 433 under reference in the Securities Act.Registration Statement, the Pricing Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), (i) there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, (ii) the Company and its subsidiaries have not incurred any liability or obligation that is material to the Company and its subsidiaries, taken as a whole, and (iii) the Company has not purchased any of its outstanding capital stock except pursuant to its employee benefit plans in the ordinary course of business, and has not declared, paid or otherwise made any dividend or distribution of any kind of its capital stock other than ordinary and customary di
Appears in 1 contract
Sources: Underwriting Agreement (PNC Financial Services Group, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date Securities and the Option Shares on any Additional Closing DateSecurities, as the case may be, will shall be subject to the accuracy of the representations and warranties on the part of the Company Transaction Entities contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to Applicable Time, the Closing Date (including the filing and each Date of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing DateDelivery, as the case may beif any, and pursuant to Section 3 hereof, to the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No On the Closing Date, (i) the Registration Statement shall have been filed by the Company with the Commission not earlier than three years prior to the date hereof and became effective upon filing in accordance with Rule 462(e) of the 1933 Act Regulations and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, Statement shall have been issued and no under the 1933 Act or proceedings for that purpose shall have been instituted therefor initiated or threatened by the SEC; Commission, and any request on the Final part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters, and no notice of objection of the Commission to the use of such form of registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the 1933 Act Regulations has been received by the Company, (ii) each preliminary prospectus and the Prospectus shall have been filed with the SEC pursuant to Commission in the manner and within the time period required by Rule 424(b) under without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the Securities Act not later than requirements of Rule 430B), and no order preventing or suspending the close use of business on any preliminary prospectus or the second business day following Prospectus shall have been issued by the execution and delivery Commission or the securities authority of this Agreement; and any jurisdiction, (iii) any material required to be filed by the Company pursuant to Rule 433(d) under of the Securities 1933 Act Regulations shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule 433, (iv) the Company shall have paid the required Commission filing fees relating to the Firm Securities within the time period required by Rule 433 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b), and (v) there shall not have come to your attention any facts that would cause you to believe that the General Disclosure Package or the Prospectus, at the time it was, or was required to be, delivered or made available to purchasers of the Securities, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading.
(b) The Company shall have requested and caused ▇▇▇▇▇ Lord ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date (or the applicable Date of Delivery, as the case may be) and addressed to the Representatives, to the matters attached as Exhibit A hereto. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the States of Texas, New York, Maryland or Delaware (to the extent limited to Delaware corporate laws) or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company or the general partner of the Operating Partnership and public officials. Such opinion shall also cover any amendments or supplements thereto at the Closing Date (or the applicable Date of Delivery, as the case may be). In addition, ▇▇▇▇▇ Lord ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall state that, although such counsel has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the General Disclosure Package or the Prospectus, no facts have come to such counsel’s attention that have caused such counsel to believe that (i) the Registration Statement or any amendment thereto, at the time of filing of the Company’s Annual Report or as of the “new effective date” with respect to the Underwriters and the Securities pursuant to, and within the meaning of, Rule 430B(f)(2), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus, or any amendment or supplement thereto, as of their respective issue dates or at the Closing Date or the applicable Date of Delivery, as the case may be, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements, related notes and schedules and other financial information included or incorporated by reference therein or omitted therefrom, as to which such counsel need express no statement). With respect to statements contained in the General Disclosure Package, any statement contained in any of the constituent documents shall be deemed to be modified or superseded to the extent that any information contained in subsequent constituent documents modifies or replaces such statement.
(c) The Representatives shall have received from Sidley Austin llp, counsel for the Underwriters, such opinion or opinions, dated the Closing Date (or the applicable Date of Delivery, as the case may be) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the disclosure in the Registration Statement, the General Disclosure Package and the Prospectus and other related matters as the Representatives may reasonably require, and the Transaction Entities shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. In rendering such opinion, such counsel may rely, as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of responsible officers of the Company or the general partner of the Operating Partnership and public officials. In addition, in rendering such opinion, such counsel may rely on and assume the accuracy of an opinion of ▇▇▇▇▇ Lord ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, dated as of the Closing Date (or the applicable Date of Delivery, as the case may be), with respect to matters of Maryland law.
(d) Each of the Company and the Operating Partnership shall have furnished to the Representatives a certificate, signed by the Chairman of the Board or President and the principal financial or accounting officer of the Company on behalf of the Company and ACCHL, for itself and as general partner of the Operating Partnership, respectively, dated the Closing Date (or the applicable Date of Delivery, as the case may be), to the effect that the signers of such certificate have carefully examined the Registration Statement, the General Disclosure Package and the Prospectus and any amendments or supplements to the foregoing, as well as this Agreement, and that:
(i) the representations and warranties of the Transaction Entities in this Agreement are true and correct on and as of the Closing Date (or the applicable Date of Delivery, as the case may be) with the same effect as if made on the Closing Date (or such Date of Delivery, as the case may be) and the Transaction Entities have complied with all the agreements and satisfied all the conditions on their part to be performed or satisfied at or prior to the Closing Date (or such Date of Delivery, as the case may be);
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or, to the Company’s knowledge, are threatened by the Commission, no notice of objection of the Commission to the use of such form of registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the 1933 Act Regulations has been received by the Company and no order preventing or suspending the use of any preliminary prospectus or the Prospectus shall have been issued by the Commission or the securities authority of any jurisdiction; and
(iii) since the date of the most recent financial statements included or incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus (for the avoidance of doubt, exclusive of any amendment or supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), business, earnings, properties, assets or prospects of the Transaction Entities and the 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 General Disclosure Package and the Prospectus (for the avoidance of doubt, exclusive of any amendment or supplement thereto).
(e) At the date hereof, the Representatives shall have received a letter from Ernst & Young LLP dated such date, in form and substance reasonably satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus.
(f) On the Closing Date (or the applicable Date of Delivery, as the case may be), the Representatives shall have received a letter, dated the Closing Date (or such Date of Delivery, as the case may be), of Ernst & Young LLP to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section 6, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date (or such Date of Delivery, as the case may be).
(g) Subsequent to the date hereof or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(e) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business, assets, prospects or properties of the Transaction Entities and the 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 General Disclosure Package and the Prospectus, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus (for the avoidance of doubt, exclusive of any amendment or supplement thereto), (iii) any downgrading in, or withdrawal of, the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 1933 Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating), (iv) any suspension or material limitation by the Commission of trading in the Common Stock or trading in securities generally on the NYSE or any setting of minimum or maximum prices on such Exchange, or maximum ranges of prices have been required, by such Exchange or by such system or by order of the Commission, FINRA or any other governmental authority, (v) any banking moratorium declared either by Federal or New York State authorities, (vi) any outbreak or significant escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis or any significant change in national or international political, financial or economic condition, the effect of which on financial markets is such as to make it, in the judgment of the Representatives, impractical or inadvisable to proceed with the offering or delivery of the Securities Actas contemplated by the General Disclosure Package and the Prospectus (for the avoidance of doubt, exclusive of any amendment or supplement thereto) or (vii) the enactment, publication, decree or other promulgation of any statute, regulation, rule or order of any court or other governmental authority which in the Representatives’ opinion materially and adversely affects or may materially and adversely affect the business or operations of the Company.
(h) On or prior to the Closing Date, the Representatives shall have received lock-up agreements substantially in the form of Exhibit B hereto (the “Lock-up Agreements”) from each of the executive officers and directors listed on Schedule III hereof.
(i) On the Closing Date, the Securities shall have been approved for listing on the NYSE, subject only to official notice of issuance.
(j) On the Closing Date (or the applicable Date of Delivery, as the case may be), counsel for the Underwriters shall have been furnished with such other documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Transaction Entities in connection with the issuance and sale of the Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters.
(k) Prior to the Closing Date (or the applicable Date of Delivery, as the case may be), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. Any certificate or document signed by any officer or representative of the Transaction Entities and delivered to the Underwriters, or to counsel for the Underwriters, shall be deemed a representation and warranty by each of the Transaction Entities to the Underwriters as to the statements made therein. The Transaction Entities will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the Closing Date (or the applicable Date of Delivery, as the case may be) or otherwise. If any of the c
Appears in 1 contract
Sources: Underwriting Agreement (American Campus Communities Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Underwritten Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior the Closing Date (for purposes of this Section 6 “Closing Date” shall refer to the Closing Date (including for the filing of Firm Securities and any document incorporated by reference therein) and as of the Closing Date or any Additional Option Closing Date, as if different, for the case may beOption Securities), and to the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, as amended from time or notice objecting to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, shall have been issued by the Commission and no proceedings for that purpose shall have been instituted or threatened by threatened. The Prospectus containing the SEC; the Final Prospectus Rule 430B Information shall have been filed with the SEC pursuant to Commission in the manner and within the time period required by Rule 424(b) under without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the Securities Act not later than the close requirements of business on the second business day following the execution and delivery of this Agreement; and any Rule 430B). All material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the SEC Commission within the applicable time periods prescribed presented for such filings under Rule 433. The Company shall have paid the required Commission filing fees relating to the Securities within the time period required by Rule 433 456(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(b) The Company shall have requested and caused M▇▇▇▇▇▇▇ & F▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives their opinion to the effect set forth in Exhibit A attached hereto, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials.
(c) The Representatives shall have received from Sidley Austin llp, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to this Agreement, the Registration Statement, the Prospectus and the Disclosure Package and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct as of the date hereof and on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement, or notice objecting to its use, has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Registration Statement, the Prospectus or the Disclosure Package (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business.
(e) At the time of the execution of this Agreement, the Representatives shall have received from Ernst & Young LLP a letter, dated such date, in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference or deemed to be incorporated by reference in the Registration Statement, the Prospectus or the Disclosure Package.
(f) At Closing Date, the Representatives shall have received from Ernst & Young LLP a letter, dated the Closing Date, to the effect that they reaffirm the statements made in the letter furnished pursuant to Section 6(e) hereof, except that the specified date referred therein to shall be a date not more than three New York business days prior to the Closing Date.
(g) Subsequent to the date hereof or, if earlier, the dates as of which information is given in the Registration Statement, the Prospectus or the Disclosure Package, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Prospectus and the Disclosure Package, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement, the Prospectus and the Disclosure Package.
(h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) Notwithstanding Section 5(o) hereof, on the Closing Date, the Securities shall have been rated “Baa3” or higher by Moody’s and “BBB-” or higher by S&P. In addition, subsequent to the date hereof, there shall not have been any decrease in the rating of any of the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 1▇▇▇ ▇▇▇) 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. Nor shall any such rating organization have publicly announced that it has placed any of the Company’s debt securities or preferred stock on what is commonly termed a “watch list” for possible downgrading.
(j) Notwithstanding Section 5(k) hereof, on the Closing Date, the Securities Actshall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Representatives.
(k) The NASD has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives, and the obligations of the Underwriters to purchase the Option Securities may be cancelled at, or at any time prior to, the Option Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Sidley Austin llp, counsel for the Underwriters, at 7▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date. The obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization, execution, authentication and issuance of the Option Securities and other matters related to the execution, authentication and issuance of the Option Securities.
Appears in 1 contract
Sources: Underwriting Agreement (UDR, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will hereunder shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the any material statements of the Company’s officers made in any certificate certificates, opinions, affidavits, written statements or letters furnished to the Representative(s) or to counsel to the Underwriters (“Underwriters’ Counsel”) pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained respective obligations hereunder and to each of the following additional conditionsconditions precedent:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filings pursuant to the Rules and Regulations and all filings (including, without limitation, the Term Sheet) required by Rule 433 or Rule 424(b) shall have been made within the periods required by such Rules, and no such filings will have been made without the consent of the Representative(s).
(b) No stop order suspending the effectiveness of the Registration StatementStatement or preventing or suspending the use of any Preliminary Prospectus, as amended from time to timethe Prospectus or any Issuer Free Writing Prospectus, or any notice under Rule 401(g)(2) under suspending the Securities Act that would prevent its usequalification of the Indenture, shall have been issued be in effect and no proceedings for that such purpose shall have been instituted be pending before or threatened by the SECCommission; no notice of objection of the Final Prospectus Commission to use the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the Rules and Regulations shall have been filed with received by the SEC pursuant to Rule 424(b) under the Securities Act not later than the close of business on the second business day following the execution and delivery of this AgreementCompany; and any material required requests for additional information on the part of the Commission (to be filed by included in the Company pursuant to Rule 433(dRegistration Statement or the Prospectus or otherwise) under the Securities Act shall have been filed complied with to the SEC within reasonable satisfaction of the applicable time periods prescribed for such filings by Rule 433 Representative(s).
(c) The Company shall have furnished to the Representative(s) the opinion of the Chief Legal Officer, General Counsel or an Associate General Counsel of the Company, addressed to the Underwriters and dated the Closing Date, to the effect that:
(i) The Company has been duly incorporated and is validly existing and in good standing as a corporation under the Securities Act.law of the jurisdiction of its incorporation and has full corporate power to conduct the businesses in which it is engaged as described in the Prospectus. Each of the Significant Subsidiaries that is incorporated under the laws of the United States or any State or territory thereof (a “Domestic Significant Subsidiary”) is a duly incorporated and validly existing corporation in good standing under the law of its jurisdiction of incorporation, and has full corporate power and authority to conduct its business as described in the
Appears in 1 contract
Sources: Underwriting Agreement (Lehman Brothers Holdings Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated therein by reference therein) reference), as of the Applicable Time and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No The Registration Statement has become effective and on the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the Act or proceedings therefor initiated or threatened by the Commission, no notice pursuant to Rule 401(g)(2) shall have been received by the Company and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters. A prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). The Company shall have paid the required Commission filing fees relating to the Securities within the time period required by Rule 456(b)(1)(i) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) and the Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(b) The Company shall have furnished to the Representatives the opinion of Faegre Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated and is validly existing and in good standing under the laws of the State of Delaware and the Company has all necessary corporate power and authority to conduct its business as described in the Registration Statement, the Disclosure Package and the Prospectus;
(ii) the Company’s authorized capitalization is as set forth in the Registration Statement, the Disclosure Package and the Prospectus; and the Securities conform to the description thereof contained in the Disclosure Package and the Prospectus;
(iii) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act, and, assuming the authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, voidable transactions, fraudulent conveyance, fraudulent transfer, reorganization, moratorium, assignment for the benefit of creditors and other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally and equitable principles of general applicability (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except further as enforcement thereof may be limited by governmental authority that limits, delays or prohibits the making of payments outside the United States;
(iv) this Agreement has been duly authorized, executed and delivered by the Company;
(v) the Securities have been duly authorized and executed by the Company and, when authenticated by the Trustee in accordance with the Indenture and delivered to and paid for by the Underwriters pursuant to the Underwriting Agreement, will be duly issued and delivered by the Company and will constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture and enforceable against the Company in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, voidable transactions, fraudulent conveyance, fraudulent transfer, reorganization, moratorium, assignment for the benefit of creditors and other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally and equitable principles of general applicability (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except further as enforcement thereof may be limited by governmental authority that limits, delays or prohibits the making of payments outside the United States;
(vi) to the actual knowledge of such counsel, (A) there is no pending action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries of a character required to be disclosed by the Company in the Registration Statement which is not adequately disclosed in the Registration Statement, the Disclosure Package and the Prospectus, (B) there is no action, suit or proceeding that has been threatened in writing by any governmental or regulatory authority or by others of a character required to be disclosed by the Company in the Registration Statement which is not adequately disclosed in the Registration Statement, the Disclosure Package and the Prospectus and (C) there is no franchise, contract or other document of a character required to be described by the Company in the Registration Statement, the Disclosure Package or the Prospectus or to be filed as an exhibit to the Registration Statement which was not described or filed as required;
(vii) the Registration Statement and any amendments thereto have become effective under the Act; and each of the Registration Statement, including without limitation the Rule 430B Information, the Prospectus and each amendment thereof or supplement thereto as of its respective effective or issue date (including without limitation each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2)) (other than the financial statements, statistical information, financial data and supporting schedules included or incorporated by reference therein and other than the Form T-1, as to each of which such counsel need express no opinion) complied as to form in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder;
(viii) no consent, approval, authorization or order of any court or governmental agency or body is required to be made or obtained by the Company under any law, statute, rule or regulation applicable to the Company for the consummation of the transactions contemplated in the Underwriting Agreement, except such as have been obtained under the Act and such as may be required under state securities or “Blue Sky” laws or regulations or Financial Industry Regulatory Authority, Inc. laws or regulations in connection with the purchase and distribution of the Securities by the Underwriters;
(ix) neither the issue and sale of the Securities, nor the consummation by the Company of any of the other transactions contemplated in this Agreement nor the performance by the Company of its obligations thereunder will (A) violate the charter or by-laws of the Company or any law or statute or rule or regulation of any governmental or regulatory authority applicable to the Company, (B) to the actual knowledge of such counsel, violate any order, judgment or decree of any court or arbitrator or governmental agency or body that names the Company or any of its subsidiaries and is specifically directed to the Company, its subsidiaries or its or their property or assets or (C) result in a breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a lien or other encumbrance on any property or assets of the Company or any of its subsidiaries pursuant to, any loan or credit agreement, indenture, mortgage, note or other agreement or instrument to which the Company or any of its subsidiaries or affiliates is a party or by which any of them or their properties or assets is bound and which has been filed as an exhibit to the Company’s Annual Report on Form 10-K for the year ended December 31, 2022 (provided that no opinion is rendered regarding breaches or defaults under any financial covenant or other provision contained in any such instrument or agreement requiring financial calculations or determinations to ascertain compliance);
(x) The statements under the heading “Material United States Federal Income Tax Considerations” contained in the Disclosure Package and the Prospectus, to the extent that such statements summarize laws, governmental rules or regulations or documents referred to therein, constitute accurate summaries of such laws, governmental rules or regulations and documents described therein in all material respects; and
(xi) The Company is not, and after giving effect to the sale of the Securities in accordance with the Underwriting Agreement and the application of the proceeds as described in the Disclosure Package and the Prospectus under the caption “Use of Proceeds” will not be required to be, registered as an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations thereunder. In addition, such counsel shall state that any required filing of each prospectus relating to the Securities (including the Prospectus) pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) (without reference to Rule 424(b)(8)); any required filing of each Issuer Free Writing Prospectus pursuant to Rule 433 has been made in the manner and within the time period required by Rule 433(d), and, to the actual knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended from time to timeamended, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, shall have has been issued and no proceedings for that purpose shall have been instituted or threatened by the SEC; the Final Prospectus shall have been filed with the SEC Commission and no notice pursuant to Rule 424(b401(g)(2) under has been received by the Securities Act not later Company. Such counsel shall also state that it has participated in conferences with representatives of the Company and with representatives of its independent accountants at which conferences the contents of the Original Registration Statement, the Registration Statement, including any 430B Information, the Prospectus and the Disclosure Package and related matters were discussed and, on the basis of such participation and review, but without independent verification by such counsel of, and without assuming any responsibility for, the accuracy, completeness or fairness of such documents and any amendment or supplement thereto (except as expressly provided in the paragraphs above), no facts have come to such counsel’s attention that causes such counsel to believe that:
(A) the Original Registration Statement or any amendment thereof (other than the close financial statements, financial data and supporting schedules included or incorporated by reference therein and other than the Form T-1, as to each of business on which such counsel need express no belief), at the second business day following time the execution and delivery Original Registration Statement or any such amendment became effective, contained any untrue statement of this Agreement; and a material fact or omitted to state any material fact required to be filed stated therein or necessary to make the statements therein not misleading;
(B) the Registration Statement, including any Rule 430B Information (other than the financial statements, financial data and supporting schedules included or incorporated by reference therein and other than the Company Form T-1, as to each of which such counsel need express no belief), at the deemed effective date with respect to the Underwriters pursuant to Rule 433(d430B(f)(2), contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading;
(C) the Prospectus or any amendment or supplement thereto (other than the financial statements, financial data and supporting schedules included or incorporated by reference therein, as to each of which such counsel need express no belief), at the time the Prospectus was issued, at the time any such amendment or supplement thereto was issued or at the Closing Date, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(D) the Disclosure Package (other than the financial statements, financial data and supporting schedules included or incorporated by reference therein, as to each of which such counsel need express no belief), as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the States of Minnesota, other than with respect to opinions (iii), (v), (viii) and (ix), New York or, with respect to its corporation law, Delaware, or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriters; and (B) as to factual matters, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.
(c) ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq., Senior Vice President, General Counsel and Secretary of the Company, ▇▇▇▇-▇▇▇ ▇. ▇▇, Chief Counsel, Corporate, Securities and M&A and Assistant Secretary of the Company or ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., Associate General Counsel, Corporate, Securities and M&A of the Company, shall have furnished to the Representatives his or her written opinion, dated the Closing Date, to the effect that:
(i) the Company has been duly organized and is validly existing and in good standing under the Securities Act shall have been filed laws of the State of Delaware; and the Company has full corporate power and authority to conduct its business as described in the Registration Statement, the Disclosure Package and the Prospectus;
(ii) the Company is duly qualified to do business and is in good standing in every jurisdiction where, in light of the nature of the business transacted or the property owned by it, such qualification is necessary and the failure so to qualify might permanently impair title to property material to its operations or its right to enforce a material contract against others or expose it to substantial liabilities in such jurisdictions;
(iii) nothing has come to such counsel’s attention which causes such counsel to believe that
(A) the Original Registration Statement or any amendment thereof (other than the financial statements, financial data and supporting schedules included or incorporated by reference therein and other than the Form T-1, as to each of which such counsel need express no belief), at the time the Original Registration Statement or any such amendment became effective, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading;
(B) the Registration Statement, including any Rule 430B Information (other than the financial statements, financial data and supporting schedules included or incorporated by reference therein and other than the Form T-1, as to each of which such counsel need express no belief), at the deemed effective date with respect to the SEC within the applicable time periods prescribed for such filings by Underwriters pursuant to Rule 433 under the Securities Act.430B(f)(2) , contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Notes shall be subject to the accuracy of the representations and warranties on the part of the Company Transaction Entities contained herein, herein as of the date hereof, as of the date of Applicable Time and the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Operating Partnership and the Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance by the Operating Partnership and observance by the Company of all of its covenants and agreements herein contained their respective obligations hereunder and to the following additional conditions:
(a) No On the Closing Date, (i) the Registration Statement shall have been filed by the Operating Partnership and the Company with the Commission not earlier than three years prior to the date hereof and became effective upon filing in accordance with Rule 462(e) of the 1933 Act Regulations and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, Statement shall have been issued and no under the 1933 Act or proceedings for that purpose shall have been instituted therefor initiated or threatened by the SEC; Commission, and any request on the Final part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters, and no notice of objection of the Commission to the use of such form of registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the 1933 Act Regulations has been received by the Operating Partnership or the Company, (ii) each preliminary prospectus and the Prospectus shall have been filed with the SEC pursuant to Commission in the manner and within the time period required by Rule 424(b) under without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the Securities Act not later than requirements of Rule 430B), and no order preventing or suspending the close use of business on any preliminary prospectus or the second business day following Prospectus shall have been issued by the execution and delivery Commission or the securities authority of this Agreement; and any jurisdiction, (iii) any material required to be filed by the Company Operating Partnership pursuant to Rule 433(d) under of the Securities 1933 Act Regulations shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule 433, (iv) the Operating Partnership shall have paid the required Commission filing fees relating to the Securities within the time period required by Rule 433 under 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b), and (v) there shall not have come to your attention any facts that would cause you to believe that the General Disclosure Package or the Prospectus, at the time it was, or was required to be, delivered or made available to purchasers of the Securities, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading.
(b) The Operating Partnership and the Company shall have requested and caused ▇▇▇▇▇ Lord LLP, counsel for the Operating Partnership and the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the matters attached as Exhibit A hereto. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the States of Texas, New York, Maryland or Delaware (to the extent limited to Delaware corporate laws) or the federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company or the general partner of the Operating Partnership and public officials. Such opinion shall also cover any amendments or supplements thereto at the Closing Date. In addition, ▇▇▇▇▇ Lord LLP shall state that, although such counsel has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the General Disclosure Package or the Prospectus, no facts have come to such counsel’s attention that have caused such counsel to believe that (i) the Registration Statement or any amendment thereto, at the time of filing of the most recent combined Annual Report on Form 10-K of the Operating Partnership and the Company or as of the “new effective date” with respect to the Underwriters and the Securities pursuant to, and within the meaning of, Rule 430B(f)(2), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus, or any amendment or supplement thereto, as of their respective issue dates or at the Closing Date, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements, related notes and schedules and other financial information included or incorporated by reference therein or omitted therefrom, as to which such counsel need express no statement). With respect to statements contained in the General Disclosure Package, any statement contained in any of the constituent documents that are also part of the General Disclosure Package shall be deemed to be modified or superseded to the extent that any information contained in subsequent constituent documents modifies or replaces such statement.
(c) The Representatives shall have received from Sidley Austin llp, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the disclosure in the Registration Statement, the General Disclosure Package and the Prospectus and other related matters as the Representatives may reasonably require, and the Transaction Entities shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. In rendering such opinion, such counsel may rely, as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of responsible officers of the Company or the general partner of the Operating Partnership and public officials. In addition, in rendering such opinion, such counsel may rely on and assume the accuracy of an opinion of ▇▇▇▇▇ Lord LLP, counsel for the Operating Partnership and the Company, dated as of the Closing Date, with respect to matters of Maryland law.
(d) Each of the Company and the Operating Partnership shall have furnished to the Representatives a certificate, signed by the Chairman of the Board or President and the principal financial or accounting officer of the Company on behalf of the Company, for itself and as the sole member of the general partner of the Operating Partnership, respectively, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the General Disclosure Package and the Prospectus and any amendments or supplements to the foregoing, as well as this Agreement, and that:
(i) the representations and warranties of the Transaction Entities in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Transaction Entities have complied with all the agreements and satisfied all the conditions on their part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or, to the Company’s or Operating Partnership’s knowledge, are threatened by the Commission, no notice of objection of the Commission to the use of such form of registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the 1933 Act Regulations has been received by the Company or the Operating Partnership and no order preventing or suspending the use of any preliminary prospectus or the Prospectus shall have been issued by the Commission or the securities authority of any jurisdiction; and
(iii) since the date of the most recent financial statements included or incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus (for the avoidance of doubt, exclusive of any amendment or supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the General Disclosure Package and the Prospectus (for the avoidance of doubt, exclusive of any amendment or supplement thereto).
(e) At the date hereof, the Representatives shall have received a letter from Ernst & Young LLP dated such date, in form and substance reasonably satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus.
(f) On the Closing Date, the Representatives shall have received a letter, dated the Closing Date, from Ernst & Young LLP to the effect that they reaffirm the statements made in the applicable letter furnished pursuant to subsection (e) of this Section 6, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date.
(g) Subsequent to the date hereof or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(e) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business, assets, prospects or properties of the Transaction Entities and the 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 General Disclosure Package and the Prospectus, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Securities as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus (for the avoidance of doubt, exclusive of any amendment or supplement thereto), or (iii) any downgrading in, or withdrawal of, the rating of any debt securities of, or guaranteed by, the Operating Partnership or the Company by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the 1934 Act), or any public announcement that any such organization has under surveillance or review its rating of any such securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading action, of such rating).
(h) On the Closing Date, counsel for the Underwriters shall have been furnished with such other documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Transaction Entities in connection with the issuance and sale of the Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters.
(i) Prior to the Closing Date, the Operating Partnership and the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(j) The Securities shall be eligible for clearance, settlement and trading through the facilities of DTC.
(k) At the Closing Date, the Securities shall be rated at least “Baa3” by ▇▇▇▇▇’▇ Investors Service, Inc. and “BBB-” by Standard & Poor’s Ratings Services and the Operating Partnership and the Company shall have delivered to the Representatives evidence reasonably satisfactory to the Representatives confirming that the Securities have such ratings; and since the execution of the Agreement, there shall not have occurred any downgrading in, or withdrawal of, the rating of any debt securities of or guaranteed by the Operating Partnership or the Company by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the 1934 Act), or any public announcement that any such organization has under surveillance or review its rating of any such securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating). Any certificate or document signed by any officer or representative of the Transaction Entities and delivered to the Underwriters, or to counsel for the Underwriters, shall be deemed a representation and warranty by each of the Transaction Entities to the Underwriters as to the statements made therein. The Transaction Entities will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the Closing Date or otherwise. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Operating Partnership in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the offices of Sidley Austin LLP, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (American Campus Communities Operating Partnership LP)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares Notes on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will shall be subject to the accuracy of the representations and warranties on the part of the Company Apollo Parties contained herein, as of herein at the date hereof, as of Execution Time and the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Apollo Parties made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company Apollo Parties of all of its covenants and agreements herein contained their obligations hereunder and to the following additional conditions:
(a) No The Registration Statement has become effective and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement or any notice under Rule 401(g)(2) post-effective amendment thereto has been issued under the Securities Act that would prevent its useAct, shall have no order preventing or suspending the use of any Preliminary Prospectus or the Prospectus has been issued and no proceedings for that purpose shall any of those purposes have been instituted or threatened by are pending or, to the SECIssuer’s knowledge, contemplated; and the Final Prospectus shall Issuer has complied with each request (if any) from the Commission for additional information. The Prospectus, and any supplement thereto, have been filed with in the SEC pursuant to manner and within the time period required by Rule 424(b) under and the Securities Act not later than final term sheet in the close of business on the second business day following the execution form approved by you and delivery of this Agreement; attached as Schedule III hereto, and any other material required to be filed by the Company Issuer pursuant to Rule 433(d) under the Securities Act Act, shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings by Rule 433 under 433. The Issuer shall have paid the required Commission filing fees relating to the Securities within the time period required by Rule 456(b)(1)(i) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(b) The Issuer shall have requested and caused ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Apollo Parties, to furnish to the Representatives its opinion and disclosure letter, dated the Closing Date and addressed to the Representatives, substantially in the forms attached hereto as Exhibits A-1 and A-2, respectively.
(c) The Representatives shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Disclosure Package, the Prospectus (as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the Apollo Parties shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Representatives shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of each Apollo Party or its general partner, on behalf of each of the Apollo Parties to the effect that (x) each of the signers of such certificate has carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto, and this Agreement, (y) the representations and warranties of the Apollo Parties contained in this Agreement are true and correct on and as of the Closing Date and that the Apollo Parties have complied with all of the agreements and satisfied all of the conditions on their part to be performed or satisfied hereunder on or before the Closing Date, and (z) since the date of the most recent financial statements included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there has been no material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise) earnings, business or properties of the Issuer and the 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 amendment or supplement thereto), provided that any executive officer signing and delivering such certificate may rely upon his or her knowledge as to proceedings threatened.
(e) At the Execution Time and at the Closing Date, Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Apollo Parties, letters, dated respectively as of the Execution Time and as of the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of the Issuer and its subsidiaries contained or incorporated by reference in each of the Registration Statement, the Disclosure Package and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off” date no more than three Business Days prior to the Closing Date.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment or supplement thereto), the Disclosure Package (exclusive of any amendment or supplement thereto) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise) earnings, business or properties of the Issuer and the 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 amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Issuer’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) [Reserved.]
(i) Prior to the Closing Date, the Apollo Parties shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Apollo Parties in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the Underwriters, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Apollo Global Management, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date Securities and the Option Shares on any Additional Closing DateSecurities, as the case may be, will shall be subject to the accuracy of the representations and warranties (in each case, subject to the qualifications, if any, described therein) on the part of the Company and the Operating Partnership contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to Applicable Time, the Closing Date (including the filing and each Date of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing DateDelivery, as the case may beif any, and pursuant to Section 3 hereof, to the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No On the Closing Date, (i) the Registration Statement has become effective and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, Statement shall have been issued and no under the 1933 Act or proceedings for that purpose shall have been instituted therefor initiated or threatened by the SEC; Commission, and any request on the Final part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters, (ii) each preliminary prospectus and the Prospectus shall have been filed with the SEC pursuant to Commission in the manner and within the time period required by Rule 424(b) under without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the Securities Act not later than requirements of Rule 430B), and no order preventing or suspending the close use of business on any preliminary prospectus or the second business day following Prospectus shall have been issued by the execution and delivery Commission or the securities authority of this Agreement; and any jurisdiction, (iii) any material required to be filed by the Company pursuant to Rule 433(d) under of the Securities 1933 Act Regulations shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule 433, and (iv) there shall not have come to the attention of the Representative any facts that would cause the Representative to believe, after consultation with counsel, that the General Disclosure Package or the Prospectus, at the time it was, or was required to be, delivered or made available to purchasers of the Securities, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading.
(b) The Company shall have requested and caused Bass, B▇▇▇▇ & S▇▇▇ PLC, counsel for the Company, to have furnished to the Representative their opinion, dated the Closing Date (or the applicable Date of Delivery, as the case may be) and addressed to the Representative, to the matters attached as Exhibit A hereto. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware (to the extent limited to Delaware corporate laws) or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. Such opinion shall also cover any amendments or supplements thereto at the Closing Date (or the applicable Date of Delivery, as the case may be). The Underwriters acknowledge that the law firm of V▇▇▇▇▇▇ LLP, special Maryland counsel to the Company, is satisfactory for the purposes of this Section 6(b). In addition, Bass, B▇▇▇▇ & S▇▇▇ PLC shall state that, although such counsel has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the General Disclosure Package or the Prospectus, no facts have come to such counsel’s attention that have caused such counsel to believe that (i) the Registration Statement or any amendment thereto, at the time the Registration Statement or any such amendment became effective, or as of the “new effective date” with respect to the Underwriters and the Securities pursuant to, and within the meaning of, Rule 430B(f)(2), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus, or any amendment or supplement thereto, as of their respective issue dates or at the Closing Date or the applicable Date of Delivery, as the case may be, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements, schedules and other financial information included or incorporated by reference therein or excluded therefrom, as to which such counsel need express no statement).
(c) The Representative shall have received the favorable opinion, dated the Closing Date (or the applicable Date of Delivery, as the case may be), of V▇▇▇▇▇▇ LLP, special Maryland counsel of the Company, to the matters attached as Exhibit B hereto.
(d) The Representative shall have received from Sidley Austin llp, counsel for the Underwriters, such opinion or opinions, dated the Closing Date (or the applicable Date of Delivery, as the case may be) and addressed to the Representative, with respect to the issuance and sale of the Securities, the disclosure in the Registration Statement, the General Disclosure Package and the Prospectus and other related matters as the Representative may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. In rendering such opinion, such counsel may rely, as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of responsible officers of the Company and public officials. In addition, in rendering such opinion, such counsel may rely on and assume the accuracy of the opinion of V▇▇▇▇▇▇ LLP, special Maryland counsel to the Company, dated as of the Closing Date (or the applicable Date of Delivery, as the case may be), with respect to matters of Maryland law.
(e) The Underwriters shall have received a certificate of the president or an executive vice president of the Company, on behalf of the Company and as sole stockholder of Education Realty OP GP, Inc. (general partner of the Operating Partnership), and of the chief financial officer or chief accounting officer of the Company, on behalf of the Company and as sole stockholder of Education Realty OP GP, Inc. (general partner of the Operating Partnership), dated the Closing Date (or the applicable Date of Delivery, as the case may be), to the effect that the signers of such certificate have carefully examined the Registration Statement, the General Disclosure Package and the Prospectus and any amendments or supplements to the foregoing, as well as this Agreement, and that:
(i) the representations and warranties (in each case, subject to the qualifications, if any, described therein) of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date (or the applicable Date of Delivery, as the case may be) with the same effect as if made on the Closing Date (or such Date of Delivery, as the case may be) and the Company and the Operating Partnership have complied with all the agreements and satisfied all the conditions on their part to be performed or satisfied at or prior to the Closing Date (or such Date of Delivery, as the case may be);
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or, to the Company’s knowledge, are threatened by the Commission, and no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued by the Commission or the securities authority of any jurisdiction; and
(iii) since the date of the most recent financial statements included or incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse effect on the condition (financial or otherwise), business, earnings, properties, assets or prospects of the Company or the Operating Partnership and the Subsidiaries, taken as a whole, except as set forth in or contemplated in the Registration Statement, the General Disclosure Package and the Prospectus (excluding any documents incorporated or deemed to be incorporated by reference therein after the date hereof).
(f) At the date hereof, the Representative shall have received a letter from Deloitte & Touche LLP dated such date, in form and substance reasonably satisfactory to the Representative, together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus.
(g) On the Closing Date (or the applicable Date of Delivery, as the case may be), the Representative shall have received a letter, dated the Closing Date (or such Date of Delivery, as the case may be), of Deloitte & Touche LLP, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section 6, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date (or such Date of Delivery, as the case may be).
(h) Subsequent to the date hereof or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there shall not have been (i) any change or decrease specified in the letter referred to in Section 6(f) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business, assets, prospects or properties of the Company or the Operating Partnership and the Subsidiaries taken as a whole, except as set forth in or contemplated in the Registration Statement, the General Disclosure Package and the Prospectus, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus, (iii) any downgrading in, or withdrawal of, the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 433 436(g) under the 1933 Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating), (iv) any suspension or material limitation by the Commission of trading in the Common Stock or trading in securities generally on the NYSE or any setting of minimum or maximum prices on such exchange, or maximum ranges of prices have been required, by such exchange or by such system or by order of the Commission, FINRA or any other governmental authority, (v) any banking moratorium declared either by federal or New York State authorities or (vi) any outbreak or significant escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis or any significant change in national or international political, financial or economic condition, the effect of which on financial markets is such as to make it, in the judgment of the Representative, impractical or inadvisable to proceed with the offering or delivery of the Securities Actas contemplated by the General Disclosure Package and the Prospectus.
(i) On or prior to the Closing Date, the Representative shall have received lock-up agreements substantially in the form of Exhibit C hereto (the “Lock-up Agreements”) from each of the executive officers and directors listed on Schedule III hereof.
(j) On the Closing Date, the Securities shall have been approved for listing on the NYSE, subject only to official notice of issuance.
(k) On the Closing Date (or the applicable Date of Delivery, as the case may be), counsel for the Underwriters shall have been furnished with such other documents as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company or the Operating Partnership in connection with the issuance and sale of the Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters.
(l) Prior to the Closing Date (or the applicable Date of Delivery, as the case may be), the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request. Any certificate or document signed by any officer or representative of the Company or the Operating Partnership and delivered to any Underwriter, or to counsel for the Underwriters, shall be deemed a representation and warranty by each of the Company and the Operating Partnership, as to matters set forth therein, to each Underwriter as to the statements made therein. The Representative may in its sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the Closing Date (or the applicable Date of Delivery, as the case may be) or otherwise. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative, this Agreement and all obligations of the Underwriters hereunder may be terminated at, or at any time prior to, the Closing Date or the applicable Date of Delivery, as the case may be, by the Representative, and such termination shall be without liability of any party to any other party except as provided in Section 7 hereof and except that Sections 1 and 8 hereof shall survive any such termination and remain in full force and effect. Notice of such termination shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the offices of Sidley Austin llp, counsel for the Underwriters, at 7▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on the Closing Date (or the applicable Date of Delivery, as the case may be).
Appears in 1 contract
Sources: Underwriting Agreement (Education Realty Trust, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate certificates furnished pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No For the period from and after effectiveness of this Agreement and prior to the Closing Date:
(i) no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under post-effective amendment to the Securities Act that would prevent its useRegistration Statement, shall have been issued be in effect and no proceedings for that such purpose shall have been instituted or threatened by the SEC; Commission, and the Final Prospectus Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to use of the automatic shelf registration statement form (unless the Shares are duly registered in the manner contemplated by Rule 401(g)(2) to the satisfaction of the Representative prior to the Closing Date);
(ii) the Company shall have been filed the preliminary prospectus and the Prospectus with the SEC pursuant to Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the NY2-739605 Securities Act Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430B, and such post-effective amendment shall have become effective (if not later than automatically effective under the close rules of business on the second business day following Commission);
(iii) the execution and delivery of this Agreement; Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act Act, shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule or, to the extent applicable, under Rule 164(b); and
(iv) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(b) The Company shall have furnished to the Representative the opinion of McGuireWoods LLP, counsel for the Company, dated the Closing Date, to the effect of paragraphs (i) and (v) through (xiii) below, and the opinion of the General Counsel of the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) through (iv) below:
(i) the Company is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware, has the corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and the Prospectus, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the “Principal Subsidiary Bank”) is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) each of the Company and the Principal Subsidiary Bank is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the Company or the Principal Subsidiary Bank, as the case may be, is required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock of the Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and (except as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except as otherwise set forth in the Disclosure Package and the Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors’ qualifying shares) are owned beneficially, directly or indirectly, by Rule 433 the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens or encumbrances;
(iv) such counsel is without knowledge that there is (1) any pending or threatened action, suit or proceeding before or by any court or governmental agency, authority or body, domestic or foreign, or any arbitrator involving the Company or any of its subsidiaries required to be disclosed in the Registration Statement, the Disclosure Package or the Prospectus which is omitted or not adequately disclosed therein, or (2) any franchise, contract or other NY2-739605 document required to be described in the Registration Statement, the Disclosure Package or the Prospectus, or to be filed as an exhibit to the Registration Statement, which is not so described or filed as required;
(v) the Deposit Agreement, the Depositary Shares and the Preferred Stock conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Prospectus;
(vi) the Registration Statement became effective under the Securities Act automatically upon its filing; no stop order suspending the effectiveness of the Registration Statement has been issued, and such counsel is without knowledge that any proceeding for that purpose has been instituted or threatened, or that the Company has received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form; and the Registration Statement, the Disclosure Package and the Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements under the Securities Act and the Exchange Act;
(vii) this Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by you, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in this Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and any bank regulatory powers now or hereafter in effect and to the application of principles of public policy;
(viii) no consent, approval, authorization or order of any court or governmental agency or body in the United States is necessary or required on behalf of the Company for the consummation of the transactions contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the blue sky, state securities, insurance or similar laws of the United States in connection with the purchase and distribution of the Depositary Shares by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(ix) the shares of Preferred Stock have been duly authorized and, when paid for as contemplated herein, will be duly issued, fully paid and nonassessable;
(x) the Depositary Shares have been duly and validly authorized for issuance and sale, and, when issued and delivered against payment therefor pursuant to this Agreement, the Depositary Shares will be validly issued and, upon deposit of the Preferred Stock with the Depository pursuant to the Deposit Agreement, and the due execution of the Deposit Agreement and the Depositary Receipts by the Depository, will be entitled to the rights under, NY2-739605 and the benefits of, the Deposit Agreement; and all corporate action required to be taken for the authorization, issue and sale of the Depositary Shares has been validly and sufficiently taken and the Depositary Shares represent legal and valid interests in the Preferred Stock;
(xi) neither the issuance and sale of the Preferred Stock or the Depositary Shares, nor the consummation of any other of the transactions herein contemplated or contemplated by the Deposit Agreement nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach of, or constitute a default under (1) the Company’s Amended and Restated Certificate of Incorporation or the Bylaws, as amended to date, (2) the terms of any indenture or other material agreement or instrument known to such counsel and to which the Company or the Principal Subsidiary Bank is a party or bound, or (3) any order, law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Principal Subsidiary Bank;
(xii) the Deposit Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the other parties thereto, constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and any bank regulatory powers now or hereafter in effect and to the application of principles of public policy; and
(xiii) such counsel is without knowledge of any rights to the registration of securities of the Company under the Registration Statement which have not been waived by the holders of such rights or which have not expired by reason of lapse of time following notification of the Company’s intention to file the Registration Statement. In rendering such opinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no view as to portions of the Registration Statement, the Disclosure Package, or the Prospectus consisting of financial statements and other financial, accounting and statistical information and it has not independently verified, is not passing upon and assumes no responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package, or the Prospectus or any amendment or supplement thereto (other than as stated in (v) above), it has no reason to believe that such remaining portions of the Registration Statement or any amendment thereto as of the time it became effective, as of the Initial Sale Time or as of the date of such opinion, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that, subject to the foregoing with respect to financial statements and other financial, accounting and statistical information, the Disclosure Package, taken as a whole, as of the Initial Sale Time, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statement therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, as amended or supplemented, as of its date or as of the date of such opinion contained or contains any untrue statement of a material fact or omitted or omits to state a NY2-739605 material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel also need not pass upon nor assume any responsibility for ascertaining whether or when any of the information contained in each Disclosure Package was conveyed to any purchaser of the Depositary Shares. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of North Carolina, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, upon the opinion of counsel to the Underwriters, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriters; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.
(c) The Representative shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package and the Prospectus and any other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representative a certificate of the Company, signed by any Senior Vice President or Treasurer or any other authorized officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and this Agreement and they are without knowledge that:
(i) the representations and warranties of the Company in this Agreement are not true and correct with the same force and effect as though expressly made at and as of the Closing Date and the Company has not performed or complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) any stop order suspending the effectiveness of the Registration Statement has been issued or any proceedings for that purpose have been instituted or threatened by the Commission;
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus, there has been any material adverse change or any development involving a prospective material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus; and
(iv) any litigation or proceeding shall be pending to restrain or enjoin the issuance or delivery of the Shares, or which in any way affects the validity of the Shares.
(e) At the time this Agreement is executed, PricewaterhouseCoopers LLP shall have furnished to the Representative a letter or letters (which may refer to letters previously NY2-739605 delivered to one or more of the Representative), dated as of the date of this Agreement, in form and substance satisfactory to the Representative, confirming that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) They are an independent registered public accounting firm with respect to the Company within the meaning under the Securities Act and the applicable rules and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (United States).
(ii) In their opinion, the consolidated financial statements of the Company and its subsidiaries audited by them and included or incorporated by reference in the Registration Statement, the preliminary prospectus and the Prospectus comply as to form in all material respects with the applicable accounting requirements under the Securities Act and the Exchange Act and the related rules
Appears in 1 contract
Conditions to the Obligations of the Underwriters. (a) The obligations of the Underwriters to purchase the Firm Shares Notes as provided herein on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate certificates furnished pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions: For the period from and after effectiveness of this Agreement and prior to the Closing Date:
(ai) No no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any post-effective amendment to the Registration Statement, shall be in effect and no proceedings for such purpose shall have been instituted or, to the Company’s knowledge, threatened by the Commission, and the Company shall not have received from the Commission any notice under pursuant to Rule 401(g)(2) under the Securities Act that would prevent its use, objecting to use of the automatic shelf registration statement form (unless the Notes are duly registered in the manner contemplated by Rule 401(g)(2) to the satisfaction of the Representatives prior to the Closing Date);
(ii) the Company shall have been issued filed any Preliminary Prospectus and no proceedings for that purpose shall have been instituted or threatened by the SEC; the Final Prospectus shall have been filed with the SEC pursuant to Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430B, and such post-effective amendment shall have become effective (if not later than automatically effective under the close rules of business on the second business day following Commission);
(iii) the execution and delivery of this Agreement; Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act Act, shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule or, to the extent applicable, under Rule 164(b);
(iv) subsequent to the date of the most recent financial statements presented in the Prospectus, there has been no Material Adverse Effect except as set forth in the Registration Statement, Disclosure Package or the Prospectus; and
(v) all requests by Rule 433 under the Securities ActCommission for additional information shall have been complied with to the reasonable satisfaction of the Representatives.
Appears in 1 contract
Sources: Underwriting Agreement (Helix Energy Solutions Group Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the International Firm Shares on the Closing Date [and the International Option Shares on any Additional Closing DateShares, as the case may be, will ,] shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Shareholder contained herein, herein as of the date hereofExecution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of [and any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Settlement Date] pursuant to Section 4 hereof, as the case may be, and to the accuracy of the statements of any officer the Company’s officers Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No The Registration Statement, including any Rule 462(b) Registration Statement, and the ADR Registration Statement has become effective, and at the Closing Date or any Settlement Date, no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement or any Rule 462(b) Registration Statement and the ADR Registration Statement or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, objecting to their use shall have been issued under the Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, and no proceedings any request on the part of the Commission for that purpose additional information shall have been instituted or threatened by complied with to the SEC; reasonable satisfaction of counsel to the Underwriters. The Final Prospectus shall have been filed with the SEC pursuant to Commission in the manner and within the time period required by Rule 424(b) under or a post-effective amendment providing such information shall have been filed and declared effective in accordance with the Securities Act not later than the close requirements of business on the second business day following the execution and delivery of this Agreement; and any Rule 430A. Any other material required to be filed by the Company pursuant to Rule 433(d) 433 under the Securities Act shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings by Rule 433 433.
(b) The Company shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special U.S. counsel for the Company and the Selling Shareholder, to have furnished to the Representative their opinion and negative assurance letter, dated the Closing Date and addressed to the Representative, in the forms of Exhibit B-1 and B-2 hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇▇▇▇, S.C., special Mexican counsel for the Company and the Selling Shareholder, to have furnished to the Representative their opinion and negative assurance letter, dated the Closing Date and addressed to the Representative, in the form of Exhibit C-1 and C-2 hereto.
(d) The Depositary shall have requested and caused [—], counsel for the Depositary, to have furnished to the Representative their opinion, dated the Closing Date and addressed to the Representative, in the form of Exhibit D hereto.
(e) The Representative shall have received from ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the sale of the International Shares, the Registration Statement, the ADR Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Representative shall have received from ▇▇▇-▇▇▇▇▇▇ Abogados, S.C., Mexican counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the sale of the International Shares, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Company shall have furnished to the Representative a certificate of the Company, signed by the chief executive officer and the principal financial or accounting officer of the Company, on behalf of the Company and not in their individual capacity, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the ADR Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the International Shares, this Agreement and the Mexican Underwriting Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) The Registration Statement and the ADR Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the ADR Registration Statement or the Registration Statement or any notice objecting to their use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no event or condition of a type that would, individually or in the aggregate, result in a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(h) The Selling Shareholder shall have furnished to the Representative a certificate of the Selling Shareholder, signed by the Selling Shareholder or appropriate representative or attorney-in-fact on behalf of the Selling Shareholder, dated the Closing Date, to the effect that the representations and warranties of the Selling Shareholder in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Selling Shareholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) The Company shall have requested and caused Galaz, Yamazaki, ▇▇▇▇ ▇▇▇▇▇▇▇, S.C., member firm of Deloitte Touche Tohmatsu Limited, independent auditors for the Company, to have furnished to the Representative, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Representative), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representative, confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Accounting Standards No. 72.
(j) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 8 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the International Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(k) The closing of the purchase of the Mexican Firm Shares to be sold by the Selling Shareholder pursuant to the Mexican Underwriting Agreement shall occur concurrently with the closing of the purchase of the International Firm Shares described herein.
(l) The Depositary shall have furnished or caused to be furnished to the Representative certificates satisfactory to the Representative evidencing the deposit with the Custodian of the Underlying Shares in respect of which ADSs are to be issued on the Closing Date, and the execution, issuance, countersignature (if applicable) and delivery of the ADRs evidencing such ADSs pursuant to the Deposit Agreement and such other matters related thereto as the Representative reasonably request.
(m) Prior to the Closing Date, the Company and the Selling Shareholder shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(n) FINRA, upon review, if any, of the terms of the public offering of the International Shares, shall not have objected to such offering, such terms or the Underwriters’ participation in the same.
(o) The ADSs and Series B Shares shall have been listed and the ADSs shall have been admitted and authorized for trading on NASDAQ, and satisfactory evidence of such actions shall have been provided to the Representative.
(p) Prior to the Execution Time, the Company shall have furnished to the Representative the Lock-Up Agreements.
(q) The CNBV shall have authorized the public offering of the Mexican Shares. No order or other type of official communication suspending the public offering of the Mexican Shares shall have been issued by the CNBV or a Mexican judicial authority and continue in effect.
(r) All approvals required under the laws of Mexico at the Closing Date, including the approval by the CNBV to conduct a public offering in Mexico of the Mexican Shares shall have been obtained.
(s) The Series B Shares underlying the International Shares shall have been delivered and credited to the Mexican custodian for the Depositary, through the systems of Indeval as the Representative shall reasonably specify.
(t) There shall not have been any decrease in or withdrawal of the rating of any securities of the Company 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 or withdrawal of any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. If any of the conditions specified in this Section 8 shall not have been fulfilled when and as provided herein, or if any of the opinions, letters and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company and the Selling Shareholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 8 shall be delivered at the office of ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Central North Airport Group)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate certificates furnished pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No For the period from and after effectiveness of this Agreement and prior to the Closing Date:
(i) no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under post-effective amendment to the Securities Act that would prevent its useRegistration Statement, shall have been issued be in effect and no proceedings for that such purpose shall have been instituted or threatened by the SEC; Commission, and the Final Prospectus Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to use of the automatic shelf registration statement form (unless the Securities are duly registered in the manner contemplated by Rule 401(g)(2) to the satisfaction of the Representatives prior to the Closing Date);
(ii) the Company shall have been filed [the preliminary prospectus and] the Prospectus with the SEC pursuant to Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430B, and such post-effective amendment shall have become effective (if not later than automatically effective under the close rules of business on the second business day following Commission);
(iii) the execution and delivery of this Agreement; Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act Act, shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule or, to the extent applicable, under Rule 164(b); and
(iv) the Financial Industry Regulatory Authority, Inc. (“FINRA”) shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(b) The Company shall have furnished to the Representatives the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date, to the effect of paragraphs (iv), (v), (vi), (vii), and (xi) below, and the opinion of the General Counsel of the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (i), (ii), (iii), (viii), (ix), and (x) below:
(i) the Company is a duly organized and validly existing corporation in good standing under the laws of the State of Florida and has the corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and the Prospectus;
(ii) the Company is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the Company is required to be so qualified or licensed;
(iii) such counsel is without knowledge that (1) there is any pending or threatened action, suit or proceeding before or by any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement, the Disclosure Package, or the Prospectus which is omitted or not adequately disclosed therein, or (2) any franchise, contract or other document of a character required to be described in the Registration Statement, the Disclosure Package, or the Prospectus, or to be filed as an exhibit to the Registration Statement, that is not so described or filed as required;
(iv) the Indenture and the Securities conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Prospectus;
(v) the Registration Statement became effective under the Securities Act automatically upon its filing; no stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment to the Registration Statement, has been issued, and such counsel is without knowledge that any proceeding for that purpose has been instituted or threatened, or that the Company has received from the Commission any notice pursuant to Rule 433 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form; and the Registration Statement, the Disclosure Package, and the Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements under the Securities Act, the Exchange Act and the Trust Indenture Act;
(vi) this Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution, and delivery by the Underwriters, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in this Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and similar bank regulatory powers and to the application of principles of public policy;
(vii) no consent, approval, authorization or order of any court or governmental agency or body in the United States is necessary or required on behalf of the Company for the consummation of the transactions contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the blue sky, state securities or insurance or similar laws of the United States in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(viii) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid, and binding instrument of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy; and the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of such Indenture and enforceable against the Company in accordance with their terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy;
(ix) neither the issuance and sale of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach of, or constitute a default under (1) the articles of incorporation or by-laws of the Company, each as amended to date or (2) any order, law or regulation known to such counsel to be applicable to the Company of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company;
(x) neither the issuance and sale of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach of, or constitute a default under the terms of any indenture or other material agreement or instrument known to such counsel and to which the Company is a party or bound; and
(xi) such counsel is without knowledge of any rights to the registration of securities of the Company under the Registration Statement which have not been waived by the holders of such rights or which have not expired by reason of lapse of time following notification of the Company’s intention to file the Registration Statement. In rendering such opinion, such counsel shall also state that, although it has participated in conferences with representatives of the Underwriters and with representatives of the Company, its counsel and its accountants concerning the Registration Statement, the Disclosure Package and the Prospectus and has considered the matters required to be stated therein and the statements contained therein, such counsel has not independently verified the accuracy, completeness or fairness of such statements. Such counsel also need not pass upon, nor assume any responsibility for, ascertaining whether or when any of the information contained in the Disclosure Package was conveyed to any purchaser of the Securities. Such counsel shall state that based upon and subject to the foregoing, nothing has come to such counsel’s attention that leads it to believe that (i) the Registration Statement, at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the documents and information comprising the Disclosure Package, taken as a whole as of the Initial Sale Time, contained an untrue statement of material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (iii) the Prospectus, as of its date, at the time it was filed with the Commission pursuant to Rule 424(b) under the Securities Act or as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel has not been requested to and does not make any comment in this paragraph with respect to the financial statements, supporting schedules, footnotes, and other financial information contained in the Registration Statement, the Disclosure Package or the Prospectus). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States to the extent deemed proper and specified in such opinion, upon the opinion of the General Counsel of the Company, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriters; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.
(c) The Representatives 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 Securities, the Indenture, the Registration Statement, the Disclosure Package, and the Prospectus and any other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer or a Senior Vice President, and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and this Agreement and they are without knowledge that:
(i) the representations and warranties of the Company in this Agreement are not true and correct with the same force and effect as though expressly made at and as of the Closing Date and the Company has not performed or complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) any stop order suspending the effectiveness of the Registration Statement has been issued or any proceedings for that purpose have been instituted or threatened by the Commission; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus, there has been any material adverse change or any development involving a prospective material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(e) At the time this Agreement is executed, KPMG LLP shall have furnished to the Representatives a letter or letters, dated as of the date of this Agreement, in form and substance satisfactory to the Representatives, confirming that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) They are an independent registered public accounting firm with respect to the Company within the meaning under the Securities Act and the applicable rules and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (United States).
(ii) In their opinion, the consolidated financial statements of the Company and its subsidiaries audited by them and included or incorporated by reference in the Registration Statement [, the preliminary prospectus] and the Prospectus comply as to form in all material respects with the applicable accounting requirements under the Securities Act and the Exchange Act and the related rules and regulations adopted by the Commission.
(iii) On the basis of procedures (but not an audit in accordance with generally accepted auditing standards) consisting of:
(A) Reading the minutes of the meetings of the stockholders, the board of directors, the Corporate Governance, Nominating and Compensation Committee and the Audit Committee of the Company as set forth in the minute books through a specified date not more than five business days prior to the date of delivery of such letter;
(B) Performing the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Accounting Standards No. 100, Interim Financial Information, on the unaudited condensed consolidated interim financial statements of the Company and its consolidated subsidiaries included or incorporated by reference in the Registration Statement, the preliminary prospectus and the Prospectus and reading the unaudited interim financial data, if any, for the period from the date of the latest balance sheet included or incorporated by reference in the Registration Statement, the pr
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date Units described in Sections 2(a) and the Option Shares on any Additional Closing Date, as the case may be, will 2(b) hereof shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereofExecution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date and (including in the filing case of any document incorporated by reference therein) and as of Units delivered after the Closing Date or Date) any Additional Closing Datesettlement date pursuant to Section 3(b) hereof, as the case may be, and to (ii) the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates delivered pursuant to the provisions of this Agreementhereof, to (iii) the performance and observance by the Company of all of its covenants obligations hereunder, and agreements herein contained and to (iv) the following additional conditions:
(a) No The Registration Statement shall have become effective (or, if a post-effective amendment is required to be filed pursuant to Rule 430A under the Act, such post-effective amendment shall become effective) not later than ___ p.m. _____ time, on the execution date hereof or at such later date and time as you may approve in writing and, at the Closing Date (and any settlement date pursuant to Section 3(b) hereof), no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, qualification in any jurisdiction shall have been issued and no proceedings for that purpose shall have been instituted or threatened by the SEC; the Final Prospectus with.
(b) The Company shall have been filed with furnished to the SEC Representative the opinion of Maurice J. Bates, LLC, counsel for ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ressed to the Underwriters and dated the Closing Date (and any settlement date pursuant to Section 3(b) hereof), or other evidence satisfactory to the Representative to the effect that:
(i) The Registration Statement has become effective under the Act; any required filing of the Prospectus or any supplements thereto pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any qualification in any jurisdiction has been issued and no proceedings for that purpose have been instituted or threatened; any request from the Commission for additional information has been complied with; the Registration Statement and the Prospectus (and any supplements thereto) comply as to form in all material respects with the applicable requirements of the Act and the rules and regulations thereunder.
(ii) The Company has no subsidiaries other than those described in the Registration Statement.
(iii) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and corporate authority to own its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction in which it conducts its business or owns property and in which the failure, individually or in the aggregate, to be so qualified would have a Material Adverse Effect. The Company has all necessary and material authorizations, approvals, orders, licenses, certificates and permits of and from all government regulatory officials and bodies, to own is properties and conduct is business as described in the Prospectus, except where failure to obtain such authorizations, approvals, orders, licenses, certificates or permits would not have a Material Adverse Effect.
(iv) the Company does not own any shares of capital stock or any other equity securities of any corporation or any equity interest in any firm, partnership, association or other entity other than as described in the Prospectus and ownership interests that would not have a Material Adverse Effect.
(v) The Company has an authorized share capitalization as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; all outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable and the certificates therefor are in valid and sufficient form; there are no other classes of stock outstanding except Common Stock and as described in the Prospectus; all outstanding options to purchase shares of Common Stock have been duly and validly authorized and issued; except as described in the Prospectus, there are no options, warrant or rights to acquire, or debt instruments convertible into or exchangeable for, or other agreements or understandings to which the Company is a party, outstanding or in existence, entitling any person to purchase or otherwise acquire any shares of capital stock of the Company; the issuance and sale of the Securities Act not later have been duly and validly authorized and, when issued and delivered and paid for, the Securities will be fully paid and nonassessable and free from preemptive rights, and will conform in all respects to the description thereof contained in the Prospectus; the Redeemable Warrant and Underwriters' Warrant constitute valid and binding obligations of the Company enforceable in accordance with their terms and the Company has reserved a sufficient number of shares of Common Stock for issuance upon exercise thereof; the Redeemable Warrant and Underwriters' Warrant possess the rights, privileges and characteristics as represented in the forms filed as Exhibits to the Registration Statement and as described in the Prospectus; the Securities (other than the close of business Underwriters' Warrant) have been approved for listing on the second business day following American Stock Exchange upon notice of issuance thereof; the certificates for the Securities are in valid and sufficient form. Each offer and sale of securities of the Company described in Item 26 of Part II of the Registration Statement was effected in compliance with the Act and the rules and regulations thereunder and with all applicable Blue Sky laws.
(vi) Other than as described in the Prospectus, there is no pending or, to the best knowledge of such counsel, threatened action, suit or proceeding before any court or governmental agency, authority or body, domestic or foreign, or any arbitrator involving the Company of a character required to be disclosed in the Registration Statement or the Prospectus that is not adequately disclosed in the Prospectus, and, to the best knowledge of such counsel, there is no contract or other document of a character required to be described in the Registration Statement or the Prospectus, or to be filed as an exhibit, which is not described or filed as required.
(vii) This Agreement has been duly authorized, executed and delivered by the Company and constitutes the legal, valid and binding agreement and obligation of the Company enforceable against it in accordance with its terms (subject to standard bankruptcy and equitable remedy exceptions, and limitations under the Act as to the enforceability of indemnification provisions).
(viii) The Company has full corporate power and corporate authority to enter into and perform is obligations under this Agreement and to issue, sell and deliver the Securities in the manner provided in this Agreement; and the Company has taken all necessary corporate action to authorize the execution and delivery of, and the performance of is obligations under, this Agreement.
(ix) Neither the offering, issue and sale of the Securities nor the consummation of any other of the transactions contemplated herein, nor the fulfillment of the terms hereof, will conflict with or result in a breach or violation of, or constitute a default under, or result in the imposition of a lien on any properties of the Company, or an acceleration of indebtedness pursuant to, the Certificate of Incorporation or bylaws of the Company, or any of the terms of any indenture or other agreement or instrument to which the Company is a party or by which is properties are bound, or any law, order, judgment, decree, rule or regulation applicable to the Company of any court, regulatory body, administrative agency, governmental body, stock exchange or arbitrator having jurisdiction over the Company. The Company is not in violation of is Certificate of Incorporation or bylaws or in breach of or default under any of the terms of any indenture or other agreement or instrument to which it is a party or by which it or its properties are bound, which breach or default would, individually or in the aggregate, have a Material Adverse Effect.
(x) Except as disclosed in the Prospectus, no person has the right, contractual or otherwise, to cause the Company to issue to it any shares of capital stock in consequence of the issue and sale of the Securities to be sold by the Company hereunder nor does any person have preemptive rights, or rights of first refusal or other rights to purchase any of the Securities. Except as referred to in the Prospectus, no person holds a right to require or participate in a registration under the Act of Common Stock or any other equity securities of the Company.
(xi) No consent, approval, authorization or order of, or declaration or filing with, any court or governmental agency or body is required to be obtained or filed by or on behalf of the Company in connection with the transactions contemplated herein, except such as may have been obtained or made and registration of the Securities under the Act, and such as may be required under the Blue Sky laws of any jurisdiction.
(xii) The Company is not in violation of or default under any judgment, ruling, decree or order or any statute, rule or regulation of any court or other United States governmental agency or body, including any applicable laws respecting employment, immigration and wages and hours, in each case, where such violation or default could have a Material Adverse Effect. The Company is not involved in any labor dispute, nor, to the best knowledge of such counsel, is any labor dispute threatened.
(xiii) The Company is not an investment company subject to registration under the Investment Company Act of 1940, as amended.
(xiv) The preparation and the filing of the Registration Statement with the Commission have been duly authorized by and on behalf of the Company, and the Registration Statement has been duly executed pursuant to such authorization by and on behalf of the Company.
(xv) The Company owns or possesses, or has the right to use pursuant to licenses, sublicenses, agreements, permissions or otherwise, adequate patents, copyrights, trade names, trademarks, service marks, licenses and other intellectual property rights necessary to carry on its business as described in the Prospectus, and, except as set forth in the Prospectus, neither the Company n has received any notice of either (i) default under any of the foregoing or (ii) infringement of or conflict with asserted rights of others with respect to, or challenge to the validity of, any of the foregoing which, in the aggregate, if the subject of an unfavorable decision, ruling or finding, could have a Material Adverse Effect, and counsel knows of no facts which could reasonably be anticipated to serve as the basis for any such notice. In addition, such counsel shall state that such counsel has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants of the Company and representatives of the Underwriters at which the contents of the Registration Statement and Prospectus were discussed and, although such counsel is not passing upon and does not assume responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or Prospectus (except as and to the extent stated in the first one clauses of subparagraph (v) above), on the basis of the foregoing and on such counsel's participation in the preparation of the Registration Statement and the Prospectus, nothing has come to the attention of such counsel that causes such counsel to believe that the Registration Statement, at the Effective Date and at the Closing Date (and any settlement date pursuant to Section 3(b) hereof), contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, at the date of such Prospectus or at the Closing Date (or any settlement date pursuant to Section 3(b) hereof), contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel need express no comment with respect to the Financial Statements and schedules and other financial or statistical data included in the Registration Statement or Prospectus). References to the Prospectus in this Section 6(b) shall include any supplements thereto.
(c) The Representative shall have received from Winstead Sechrest & Minick, P.C., ▇▇▇▇▇▇l ▇▇▇ ▇▇▇ Und▇▇▇▇▇▇ers, an opinion dated the Closing Date (and any settlement date pursuant to Section 3(b) hereof), with respect to the issuance and sale of the Securities, and with respect to the Registration Statement, the Prospectus and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representative a certificate of the Company, signed by its President and Chief Executive Officer, and Vice President-Finance and Secretary, dated the Closing Date (and any settlement date pursuant to Section 3(b) hereof), to the effect that each has carefully examined the Registration Statement, the Prospectus (and any supplements thereto) and this Agreement, and, after due inquiry, that:
(i) As of the Closing Date (and any settlement date pursuant to Section 3(b) hereof), the statements made in the Registration Statement and the Prospectus are true and correct and the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(ii) No order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities under the securities or Blue Sky laws of any jurisdiction is in effect and no proceeding for such purpose is pending before or, to the knowledge of such officers, threatened or contemplated by the Commission or the authorities of any such jurisdiction; and any material required request for additional information with respect to be filed the Registration Statement or the Prospectus on the part of the staff of the Commission or any such authorities brought to the attention of such officers has been complied with to the satisfaction of the staff of the Commission or such authorities.
(iii) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any change in the capital stock or long-term debt of the Company, except as set forth in or contemplated by the Registration Statement and the Prospectus, (y) there has not been any material adverse change in the general affairs, business, prospects, properties, management, results of operations or condition (financial or otherwise) of the Company, whether or not arising from transactions in the ordinary course of business, in each case, other than as set forth in or contemplated by the Registration Statement and the Prospectus, and (z) the Company pursuant to Rule 433(dhas not sustained any material interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus.
(iv) under Since the Securities Act shall have respective dates as of which information is given in the Registration Statement and the Prospectus, there has been filed with no litigation instituted against the SEC within the applicable time periods prescribed for such filings by Rule 433 under the Securities Act.Comp
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares Securities on the Closing Date and or the Option Shares Securities on any Additional Option Closing Date, as the case may be, will shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or and any Additional Option Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate certificates furnished pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No For the period from and after effectiveness of this Agreement and prior to the Closing Date and any Option Closing Date, as the case may be:
(i) no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any post-effective amendment to the Registration Statement, shall be in effect and no proceedings for such purpose shall have been instituted or, to the Company’s knowledge, threatened by the Commission, and the Company shall not have received from the Commission any notice under pursuant to Rule 401(g)(2) under the Securities Act that would prevent its use, objecting to use of the automatic shelf registration statement form (unless the Securities are duly registered in the manner contemplated by Rule 401(g)(2) to the satisfaction of the Representatives prior to the Closing Date);
(ii) the Company shall have been issued filed any Preliminary Prospectus and no proceedings for that purpose shall have been instituted or threatened by the SEC; the Final Prospectus shall have been filed with the SEC pursuant to Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430B, and such post-effective amendment shall have become effective (if not later than automatically effective under the close rules of business on the second business day following Commission);
(iii) the execution and delivery of this Agreement; Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act Act, shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule or, to the extent applicable, under Rule 164(b); and
(iv) all requests by Rule 433 under the Securities ActCommission for additional information shall have been complied with to the reasonable satisfaction of the Representatives.
Appears in 1 contract
Sources: Underwriting Agreement (Raymond James Financial Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to severally and not jointly purchase the Firm Shares Notes as provided herein on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate certificates furnished pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No For the period from and after effectiveness of this Agreement and prior to the Closing Date:
(i) no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under post-effective amendment to the Securities Act that would prevent its useRegistration Statement, shall have been issued be in effect and no proceedings for that such purpose shall have been instituted or or, to the Company’s knowledge, threatened by the SEC; Commission, and any request on the Final Prospectus part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters;
(ii) the Company shall have filed any Preliminary Prospectus and the Prospectus with the SEC pursuant to Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430B, and such post-effective amendment shall have become effective (if not later than automatically effective under the close rules of business on the second business day following Commission);
(iii) the execution and delivery of this Agreement; Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act Act, shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule or, to the extent applicable, under Rule 164(b); and
(iv) all requests by Rule 433 under the Securities ActCommission for additional information shall have been complied with to the reasonable satisfaction of the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (Hallmark Financial Services Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Purchased Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No stop order suspending in whole or in part the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent objecting to its use, use shall have been issued and no proceedings for that purpose shall have been instituted or threatened by the SECthreatened; the Final Prospectus and any supplement thereto shall have been filed with in the SEC pursuant to manner and within the time period required by Rule 424(b) under the Securities Act not later than Act; the close of business on the second business day following the execution and delivery of this Agreement; final term sheet contemplated by Section 4(i) hereto, if applicable, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act Act, shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings by Rule 433 under the Securities Act.
(b) The Company shall have furnished to the Representatives the opinion of its General Counsel, or of ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., Senior Vice President, General Counsel and Corporate Secretary, of the Company, or such other counsel to the Company reasonably acceptable to the Representatives, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and the Final Prospectus;
(ii) the Company’s authorized equity capitalization is as set forth in the Disclosure Package and the Final Prospectus; the Purchased Securities conform to the description thereof contained in the Disclosure Package and the Final Prospectus; and, if the Purchased Securities are to be listed on the New York Stock Exchange, authorization therefor has been given, subject to official notice of issuance and evidence of satisfactory distribution, or the Company has filed a preliminary listing application and all required supporting documents with respect to the Purchased Securities with the New York Stock Exchange and such counsel has no reason to believe that the Purchased Securities will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution;
(iii) the Indenture has been duly authorized, executed and delivered; the Indenture has been duly qualified under the Trust Indenture Act; the Indenture constitutes a valid and legally binding instrument enforceable against the Company in accordance with its terms, except that such enforcement may be subject to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally and general principles of equity from time to time in effect; and the Purchased Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute valid and legally binding obligations of the Company entitled to the benefits of the Indenture;
(iv) to the best knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Preliminary Final Prospectus and the Final Prospectus, and there is no franchise, contract or other document of a character required to be disclosed, or to be filed as an exhibit, in the Registration Statement which is not adequately disclosed in the Preliminary Final Prospectus and the Final Prospectus;
(v) the Registration Statement and any amendments thereto have become effective under the Act; the Final Prospectus has been filed in the manner and within the time period required by Rule 424; to the best knowledge of such counsel, no stop order suspending in whole or in part the effectiveness of the Registration Statement, as amended, or any notice objecting to its use has been issued, no proceedings for that purpose have been instituted or threatened, and the Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than the financial statements and other financial and statistical information and management’s report on the effectiveness of internal control over financial reporting contained therein as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Exchange Act, and the respective rules thereunder; and such counsel has no reason to believe that the Registration Statement, or any amendment thereof, at the time it became effective and at the date of this Agreement, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Final Prospectus, as amended or supplemented, as of its date or the Closing Date includes any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information and management’s report on the effectiveness of internal control over financial reporting contained therein as to which such counsel need express no opinion);
(vi) such counsel has no reason to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in the Disclosure Package and the final term sheet prepared and filed pursuant to Section 4(i) hereof, if applicable, when taken together as a whole, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information and management’s report on the effectiveness of internal control over financial reporting contained therein as to which such counsel need express no opinion);
(vii) this Agreement has been duly authorized, executed and delivered by the Company;
(viii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of Purchased Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Purchased Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or constitute a default under (i) the certificate of incorporation or by-laws of the Company, (ii) the terms of any indenture or other agreement or instrument known to such counsel to which the Company is a party or bound, or (iii) any order, rule or regulation known to such counsel of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company, except in the case of clauses (ii) and (iii) where any such breach, violation or default would not be material to the Company and its subsidiaries taken as a whole; and
(x) no holders of securities of the Company have rights to the registration of such securities under the Registration Statement. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdictions other than the States of Delaware and New York or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and public officials.
(c) The Representatives 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 Purchased Securities, the Indenture, the Registration Statement, the Final Prospectus and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company signed by the Chief Financial Officer, the Treasurer, any Assistant Treasurer or the Controller of the Company, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package and any supplements or amendments thereto, as well as each electronic roadshow used to offer the Purchased Securities, if any, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending in whole or in part the effectiveness of the Registration Statement, as amended, or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to their knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus, there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its Significant Subsidiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus.
(e) On the date of this Agreement and on the Closing Date, the Company’s auditor(s) shall have furnished to the Representatives, at the request of the Company, letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus; provided that the letter(s) delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date.
(f) Subsequent to the respective dates as of which information is given in the Registration Statement, the Disclosure Package and the Final Prospectus, there shall not have been
(i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 5; or
(ii) any change, or any development involving a prospective change, in or affecting the business or properties of the Company and its Significant Subsidiary, except as set forth in or contemplated in the Disclosure Package, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Purchased Securities as contemplated by the Registration Statement, the Disclosure Package and the Final Prospectus.
(g) Subsequent to the execution of this Agreement, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as such term is defined under Section 3(a) (62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or telegraph confirmed in writing. The documents required to be delivered by this Section 5 shall be delivered at the office of counsel for the Underwriters, at the principal offices of such counsel, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Honeywell International Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date Units described in Sections 2(a) and the Option Shares on any Additional Closing Date, as the case may be, will 2(b) hereof shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereofExecution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date and (including in the filing case of any document incorporated by reference therein) and as of Units delivered after the Closing Date or any Additional Closing Date, as the case may beany settlement date pursuant to Section 3(b) hereof), and to (ii) the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates delivered pursuant to the provisions of this Agreementhereof, to (iii) the performance and observance by the Company of all of its covenants obligations hereunder, and agreements herein contained and to (iv) the following additional conditions:
(a) No The Registration Statement shall have become effective (or, if a post-effective amendment is required to be filed pursuant to Rule 430A under the Act, such post-effective amendment shall become effective) not later than 5:00 p.m. Eastern Standard Time, on the execution date hereof or at such later date and time as the Representative may approve in writing and, at the Closing Date (and any settlement date pursuant to Section 3(b) hereof), no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, qualification in any jurisdiction shall have been issued and no proceedings for that purpose shall have been instituted or initiated or, to the best knowledge of the Company, threatened by the SEC; the Final Prospectus Commission.
(b) The Company shall have been filed with furnished to the SEC Representative the opinion of Ma▇▇▇▇▇ ▇. ▇▇▇▇▇ L.L.C., counsel for the Company, addressed to the Underwriters and dated the Closing Date (and any settlement date pursuant to Section 3(b) hereof), or other evidence satisfactory to the Representative to the effect that:
(i) The Registration Statement has become effective under the Act; any required filing of the Prospectus or any supplements thereto pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any qualification in any jurisdiction has been issued and no proceedings for that purpose have been instituted or threatened; any request from the Commission for additional information has been complied with; the Registration Statement and the Prospectus (and any supplements thereto) comply as to form in all material respects with the applicable requirements of the Act and the rules and regulations thereunder (except that such counsel need express no opinion with respect to the Financial Statements and schedules included in the Registration Statement and Prospectus).
(ii) The Company does not own or control, directly or indirectly, any shares of capital stock or equity interests in any corporation, partnership, association or other entity, except as set forth in the Prospectus.
(iii) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and corporate authority to own its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction in which it conducts its business or owns property and in which the failure, individually or in the aggregate, to be so qualified would have a Material Adverse Effect. The Company has all necessary and material authorizations, approvals, orders, licenses, certificates and permits of and from all government regulatory officials and bodies, to own its properties and conduct its business as described in the Prospectus, except where failure to obtain such authorizations, approvals, orders, licenses, certificates or permits would not have a Material Adverse Effect.
(iv) The Company has an authorized share capitalization as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; all outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable and the certificates therefor are in valid and sufficient form in accordance with applicable state law; there are no other classes of stock outstanding except Common Stock; all outstanding options to purchase shares of Common Stock have been duly and validly authorized and issued; except as described in the Prospectus, there are no options, warrants or rights to acquire, or debt instruments convertible into or exchangeable for, or other agreements or understandings to which the Company is a party, outstanding or in existence, entitling any person to purchase or otherwise acquire any shares of capital stock of the Company; the issuance and sale of the Securities Act not later have been duly and validly authorized and, when issued and delivered and paid for, the Securities will be fully paid and nonassessable and free from preemptive rights, and will conform in all respects to the description thereof contained in the Prospectus; the Warrants and the Representative's Warrants constitute valid and binding obligations of the Company enforceable in accordance with their terms and the Company has reserved a sufficient number of shares of Common Stock for issuance upon exercise thereof; the Warrants and the Representative's Warrants possess the rights, privileges and characteristics as represented in the forms filed as exhibits to the Registration Statement and as described in the Prospectus; the Securities (other than the close Representative's Warrants) have been approved for listing on AMEX upon notice of business on issuance thereof; the second business day following certificates for the Securities are in valid and sufficient form. Each offer and sale of securities of the Company described in Item 26 of Part II of the Registration Statement was effected in compliance with the Act and the rules and regulations thereunder.
(v) Other than as described in the Prospectus, there is no pending or, to the best knowledge of such counsel after reasonable investigation, threatened action, suit or proceeding before any court or governmental agency, authority or body, domestic or foreign, or any arbitrator involving the Company of a character required to be disclosed in the Registration Statement or the Prospectus that is not adequately disclosed in the Prospectus, and, to the best knowledge of such counsel, there is no contract or other document of a character required to be described in the Registration Statement or the Prospectus, or to be filed as an exhibit, which is not described or filed as required.
(vi) This Agreement has been duly authorized, executed and delivered by the Company and constitutes the legal, valid and binding agreement and obligation of the Company enforceable against it in accordance with its terms (subject to standard bankruptcy and equitable remedy exceptions, and limitations under the Act as to the enforceability of indemnification provisions).
(vii) The Company has full corporate power and corporate authority to enter into and perform its obligations under this Agreement and to issue, sell and deliver the Securities in the manner provided in this Agreement; and the Company has taken all necessary corporate action to authorize the execution and delivery of, and the performance of its obligations under, this Agreement.
(viii) Neither the offering, issue and sale of the Securities nor the consummation of any other of the transactions contemplated herein, nor the fulfillment of the terms hereof, will conflict with or result in a breach or violation of, or constitute a default under, or result in the imposition of a lien on any properties of the Company, or an acceleration of indebtedness pursuant to, the Articles of Incorporation (or other charter document) or bylaws of the Company, or any of the terms of any indenture or other agreement or instrument to which the Company is a party or by which its properties are bound, or any law, order, judgment, decree, rule or regulation applicable to the Company of any court, regulatory body, administrative agency, governmental body, stock exchange or arbitrator having jurisdiction over the Company. The Company is not in violation of its Articles of Incorporation or bylaws or, to the best knowledge of such counsel after reasonable investigation, in breach of or default under any of the terms of any indenture or other agreement or instrument to which it is a party or by which it or its properties are bound, which breach or default would, individually or in the aggregate, have a Material Adverse Effect.
(ix) Except as disclosed in the Prospectus, no person has the right, contractual or otherwise, to cause the Company to issue to it any shares of capital stock in consequence of the issue and sale of the Securities to be sold by the Company hereunder nor does any person have preemptive rights, or rights of first refusal or other rights to purchase any of the Securities. Except as referred to in the Prospectus, no person holds a right to require or participate in a registration under the Act of Common Stock or any other equity securities of the Company.
(x) No consent, approval, authorization or order of, or declaration or filing with, any court or governmental agency or body is required to be obtained or filed by or on behalf of the Company in connection with the transactions contemplated herein, except such as may have been obtained or made and registration of the Securities under the Act, and such as may be required under the Blue Sky laws of any jurisdiction.
(xi) To the best knowledge of such counsel after reasonable investigation, the Company is not in violation of or default under any judgment, ruling, decree or order or any statute, rule or regulation of any court or other United States governmental agency or body, including any applicable laws respecting employment, immigration and wages and hours, in each case, where such violation or default could have a Material Adverse Effect. The Company is not involved in any labor dispute, nor, to the best knowledge of such counsel, is any labor dispute threatened.
(xii) The Company is not an investment company subject to registration under the Investment Company Act of 1940, as amended.
(xiii) The preparation and the filing of the Registration Statement with the Commission have been duly authorized by and on behalf of the Company, and the Registration Statement has been duly executed pursuant to such authorization by and on behalf of the Company.
(xiv) The Company owns or possesses, or has the right to use pursuant to licenses, sublicenses, agreements, permissions or otherwise, adequate patents, copyrights, trade names, trademarks, service marks, licenses and other intellectual property rights necessary to carry on its business as described in the Prospectus, and, except as set forth in the Prospectus, neither such counsel nor, to the knowledge of such counsel, the Company has received any notice of either (i) default under any of the foregoing or (ii) infringement of or conflict with asserted rights of others with respect to, or challenge to the validity of, any of the foregoing which, in the aggregate, if the subject of an unfavorable decision, ruling or finding, could have a Material Adverse Effect, and counsel knows of no facts which could reasonably be anticipated to serve as the basis for any such notice. In addition, such counsel shall state that such counsel has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants of the Company and representatives of the Underwriters at which the contents of the Registration Statement and Prospectus were discussed and, although such counsel is not passing upon and does not assume responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or Prospectus (except as and to the extent stated in subparagraphs (i) and (v) above), on the basis of the foregoing and on such counsel's participation in the preparation of the Registration Statement and the Prospectus, nothing has come to the attention of such counsel that causes such counsel to believe that the Registration Statement, at the Effective Date and at the Closing Date (and any settlement date pursuant to Section 3(b) hereof), contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, at the date of such Prospectus or at the Closing Date (or any settlement date pursuant to Section 3(b) hereof), contained or contains any untrue statement of a material fact or omitted or omits to state 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 (it being understood that such counsel need express no comment with respect to the Financial Statements and schedules and other financial or statistical data derived therefrom included in the Registration Statement or Prospectus). References to the Prospectus in this Section 6(b) shall include any supplements thereto.
(c) The Representative shall have received from Wo▇▇▇, ▇▇▇▇▇▇ & Mi▇▇▇▇ ▇LP, counsel for the Underwriters, an opinion dated the Closing Date (and any settlement date pursuant to Section 3(b) hereof), with respect to the issuance and sale of the Securities, and with respect to the Registration Statement, the Prospectus and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representative a certificate of the Company, signed by its Chief Executive Officer and its Chief Financial Officer, dated the Closing Date (and any settlement date pursuant to Section 3(b) hereof), to the effect that each has carefully examined the Registration Statement, the Prospectus (and any supplements thereto) and this Agreement, and, after due inquiry, that:
(i) As of the Closing Date (and any settlement date pursuant to Section 3(b) hereof), the statements made in the Registration Statement and the Prospectus are true and correct and the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) No order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities under the securities or Blue Sky laws of any jurisdiction is in effect and no proceeding for such purpose is pending before or, to the knowledge of such officers, threatened or contemplated by the Commission or the authorities of any such jurisdiction; and any material required request for additional information with respect to be filed the Registration Statement or the Prospectus on the part of the staff of the Commission or any such authorities brought to the attention of such officers has been complied with to the satisfaction of the staff of the Commission or such authorities.
(iii) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any change in the capital stock or long-term debt of the Company, except as set forth in or contemplated by the Registration Statement and the Prospectus, (y) there has not been any material adverse change in the general affairs, business, prospects, properties, management, results of operations or condition (financial or otherwise) of the Company, whether or not arising from transactions in the ordinary course of business, in each case, other than as set forth in or contemplated by the Registration Statement and the Prospectus, and (z) the Company pursuant to Rule 433(d) under has not sustained any material interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Securities Act shall have been filed with the SEC within the applicable time periods prescribed for such filings by Rule 433 under the Securities Act.Registrati
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date Units described in Sections 2(a) and the Option Shares on any Additional Closing Date, as the case may be, will 2(b) hereof shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereofExecution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date and (including in the filing case of any document incorporated by reference therein) and as of Units delivered after the Closing Date or any Additional Closing Date, as the case may beany settlement date pursuant to Section 3(b) hereof), and to (ii) the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates delivered pursuant to the provisions of this Agreementhereof, to (iii) the performance and observance by the Company of all of its covenants obligations hereunder, and agreements herein contained and to (iv) the following additional conditions:
(a) No The Registration Statement shall have become effective (or, if a post-effective amendment is required to be filed pursuant to Rule 430A under the Act, such post-effective amendment shall become effective) not later than 5:00 p.m. Eastern Standard Time, on the execution date hereof or at such later date and time as the Representative may approve in writing and, at the Closing Date (and any settlement date pursuant to Section 3(b) hereof), no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, qualification in any jurisdiction shall have been issued and no proceedings for that purpose shall have been instituted or initiated or, to the best knowledge of the Company, threatened by the SEC; the Final Prospectus Commission.
(b) The Company shall have been filed with furnished to the SEC Representative the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ L.L.C., counsel for the Company, addressed to the Underwriters and dated the Closing Date (and any settlement date pursuant to Section 3(b) hereof), or other evidence satisfactory to the Representative to the effect that:
(i) The Registration Statement has become effective under the Act; any required filing of the Prospectus or any supplements thereto pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any qualification in any jurisdiction has been issued and no proceedings for that purpose have been instituted or threatened; any request from the Commission for additional information has been complied with; the Registration Statement and the Prospectus (and any supplements thereto) comply as to form in all material respects with the applicable requirements of the Act and the rules and regulations thereunder (except that such counsel need express no opinion with respect to the Financial Statements financial statements and schedules included in the Registration Statement and Prospectus).
(ii) The Company does not own or control, directly or indirectly, any shares of capital stock or equity interests in any corporation, partnership, association or other entity, except as set forth in the Prospectus.
(iii) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and corporate authority to own its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction in which it conducts its business or owns property and in which the failure, individually or in the aggregate, to be so qualified would have a Material Adverse Effect. The Company has all necessary and material authorizations, approvals, orders, licenses, certificates and permits of and from all government regulatory officials and bodies, to own its properties and conduct its business as described in the Prospectus, except where failure to obtain such authorizations, approvals, orders, licenses, certificates or permits would not have a Material Adverse Effect.
(iv) The Company has an authorized share capitalization as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; all outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable and the certificates therefor are in valid and sufficient form in accordance with applicable state law; there are no other classes of stock outstanding except Common Stock; all outstanding options to purchase shares of Common Stock have been duly and validly authorized and issued; except as described in the Prospectus, there are no options, warrants or rights to acquire, or debt instruments convertible into or exchangeable for, or other agreements or understandings to which the Company is a party, outstanding or in existence, entitling any person to purchase or otherwise acquire any shares of capital stock of the Company; the issuance and sale of the Securities Act not later have been duly and validly authorized and, when issued and delivered and paid for, the Securities will be fully paid and nonassessable and free from preemptive rights, and will conform in all respects to the description thereof contained in the Prospectus; the Warrants and the Representative's Warrants constitute valid and binding obligations of the Company enforceable in accordance with their terms and the Company has reserved a sufficient number of shares of Common Stock for issuance upon exercise thereof; the Warrants and the Representative's Warrants possess the rights, privileges and characteristics as represented in the forms filed as exhibits to the Registration Statement and as described in the Prospectus; the Securities (other than the close Representative's Warrants) have been approved for listing on AMEX upon notice of business on issuance thereof; the second business day following certificates for the Securities are in valid and sufficient form. Each offer and sale of securities of the Company described in Item 26 of Part II of the Registration Statement was effected in compliance with the Act and the rules and regulations thereunder.
(v) Other than as described in the Prospectus, there is no pending or, to the best knowledge of such counsel after reasonable investigation, threatened action, suit or proceeding before any court or governmental agency, authority or body, domestic or foreign, or any arbitrator involving the Company of a character required to be disclosed in the Registration Statement or the Prospectus that is not adequately disclosed in the Prospectus, and, to the best knowledge of such counsel, there is no contract or other document of a character required to be described in the Registration Statement or the Prospectus, or to be filed as an exhibit, which is not described or filed as required.
(vi) This Agreement has been duly authorized, executed and delivered by the Company and constitutes the legal, valid and binding agreement and obligation of the Company enforceable against it in accordance with its terms (subject to standard bankruptcy and equitable remedy exceptions, and limitations under the Act as to the enforceability of indemnification provisions).
(vii) The Company has full corporate power and corporate authority to enter into and perform its obligations under this Agreement and to issue, sell and deliver the Securities in the manner provided in this Agreement; and the Company has taken all necessary corporate action to authorize the execution and delivery of, and the performance of its obligations under, this Agreement.
(viii) Neither the offering, issue and sale of the Securities nor the consummation of any other of the transactions contemplated herein, nor the fulfillment of the terms hereof, will conflict with or result in a breach or violation of, or constitute a default under, or result in the imposition of a lien on any properties of the Company, or an acceleration of indebtedness pursuant to, the Articles of Incorporation (or other charter document) or bylaws of the Company, or any of the terms of any indenture or other agreement or instrument to which the Company is a party or by which its properties are bound, or any law, order, judgment, decree, rule or regulation applicable to the Company of any court, regulatory body, administrative agency, governmental body, stock exchange or arbitrator having jurisdiction over the Company. The Company is not in violation of its Articles of Incorporation or bylaws or, to the best knowledge of such counsel after reasonable investigation, in breach of or default under any of the terms of any indenture or other agreement or instrument to which it is a party or by which it or its properties are bound, which breach or default would, individually or in the aggregate, have a Material Adverse Effect.
(ix) Except as disclosed in the Prospectus, no person has the right, contractual or otherwise, to cause the Company to issue to it any shares of capital stock in consequence of the issue and sale of the Securities to be sold by the Company hereunder nor does any person have preemptive rights, or rights of first refusal or other rights to purchase any of the Securities. Except as referred to in the Prospectus, no person holds a right to require or participate in a registration under the Act of Common Stock or any other equity securities of the Company.
(x) No consent, approval, authorization or order of, or declaration or filing with, any court or governmental agency or body is required to be obtained or filed by or on behalf of the Company in connection with the transactions contemplated herein, except such as may have been obtained or made and registration of the Securities under the Act, and such as may be required under the Blue Sky laws of any jurisdiction.
(xi) To the best knowledge of such counsel after reasonable investigation, the Company is not in violation of or default under any judgment, ruling, decree or order or any statute, rule or regulation of any court or other United States governmental agency or body, including any applicable laws respecting employment, immigration and wages and hours, in each case, where such violation or default could have a Material Adverse Effect. The Company is not involved in any labor dispute, nor, to the best knowledge of such counsel, is any labor dispute threatened.
(xii) The Company is not an investment company subject to registration under the Investment Company Act of 1940, as amended.
(xiii) The preparation and the filing of the Registration Statement with the Commission have been duly authorized by and on behalf of the Company, and the Registration Statement has been duly executed pursuant to such authorization by and on behalf of the Company.
(xiv) The Company owns or possesses, or has the right to use pursuant to licenses, sublicenses, agreements, permissions or otherwise, adequate patents, copyrights, trade names, trademarks, service marks, licenses and other intellectual property rights necessary to carry on its business as described in the Prospectus, and, except as set forth in the Prospectus, neither such counsel nor, to the knowledge of such counsel, the Company has received any notice of either (i) default under any of the foregoing or (ii) infringement of or conflict with asserted rights of others with respect to, or challenge to the validity of, any of the foregoing which, in the aggregate, if the subject of an unfavorable decision, ruling or finding, could have a Material Adverse Effect, and counsel knows of no facts which could reasonably be anticipated to serve as the basis for any such notice. In addition, such counsel shall state that such counsel has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants of the Company and representatives of the Underwriters at which the contents of the Registration Statement and Prospectus were discussed and, although such counsel is not passing upon and does not assume responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or Prospectus (except as and to the extent stated in subparagraphs (i) and (v) above), on the basis of the foregoing and on such counsel's participation in the preparation of the Registration Statement and the Prospectus, nothing has come to the attention of such counsel that causes such counsel to believe that the Registration Statement, at the Effective Date and at the Closing Date (and any settlement date pursuant to Section 3(b) hereof), contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, at the date of such Prospectus or at the Closing Date (or any settlement date pursuant to Section 3(b) hereof), contained or contains any untrue statement of a material fact or omitted or omits to state 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 (it being understood that such counsel need express no comment with respect to the Financial Statements financial statements and schedules and other financial or statistical data derived therefrom included in the Registration Statement or Prospectus). References to the Prospectus in this Section 6(b) shall include any supplements thereto.
(c) The Representative shall have received from ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Underwriters, an opinion dated the Closing Date (and any settlement date pursuant to Section 3(b) hereof), with respect to the issuance and sale of the Securities, and with respect to the Registration Statement, the Prospectus and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representative a certificate of the Company, signed by its Chief Executive Officer and its Chief Financial Officer, dated the Closing Date (and any settlement date pursuant to Section 3(b) hereof), to the effect that each has carefully examined the Registration Statement, the Prospectus (and any supplements thereto) and this Agreement, and, after due inquiry, that:
(i) As of the Closing Date (and any settlement date pursuant to Section 3(b) hereof), the statements made in the Registration Statement and the Prospectus are true and correct and the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) No order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities under the securities or Blue Sky laws of any jurisdiction is in effect and no proceeding for such purpose is pending before or, to the knowledge of such officers, threatened or contemplated by the Commission or the authorities of any such jurisdiction; and any material required request for additional information with respect to be filed the Registration Statement or the Prospectus on the part of the staff of the Commission or any such authorities brought to the attention of such officers has been complied with to the satisfaction of the staff of the Commission or such authorities.
(iii) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any change in the capital stock or long-term debt of the Company, except as set forth in or contemplated by the Registration Statement and the Prospectus, (y) there has not been any material adverse change in the general affairs, business, prospects, properties, management, results of operations or condition (financial or otherwise) of the Company, whether or not arising from transactions in the ordinary course of business, in each case, other than as set forth in or contemplated by the Registration Statement and the Prospectus, and (z) the Company pursuant to Rule 433(d) under the Securities Act shall have been filed has not sustained any material interference with the SEC within the applicable time periods prescribed for such filings its business or properties from fire, explosion, flood or other casualty, whether or not covered by Rule 433 under the Securities Act.insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date Securities described in Sections 2(a) and the Option Shares on any Additional Closing Date, as the case may be, will 2(b) hereof shall be subject to (i) the accuracy of the representations and warranties on the part of each of the Company and the Selling Shareholder contained herein, herein as of the date hereofExecution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date and (including in the filing case of any document incorporated by reference therein) and as of Securities delivered after the Closing Date or any Additional Closing Date, as the case may beany settlement date pursuant to Section 3(b) hereof), and to (ii) the accuracy of the statements of each of the Company’s officers Company and the Selling Shareholder made in any certificate furnished certificates delivered pursuant to the provisions of this Agreementhereof, to (iii) the performance and observance by each of the Company of all and the Selling Shareholder of its covenants obligations hereunder, and agreements herein contained and to (iv) the following additional conditions:
(a) No The Registration Statement shall have become effective (or, if a post-effective amendment is required to be filed pursuant to Rule 430A under the Act, such post-effective amendment shall become effective) not later than 5:00 p.m. Eastern Standard Time, on the execution date hereof or at such later date and time as the Representative may approve in writing and, at the Closing Date (and any settlement date pursuant to Section 3(b) hereof), no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, qualification in any jurisdiction shall have been issued and no proceedings for that purpose shall have been instituted or initiated or, to the best knowledge of the Company, threatened by the SEC; the Final Prospectus Commission.
(b) The Company shall have been filed with furnished to the SEC Representative the opinion of Robert A. Forrester, counsel for ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇sed to the Underwriters and dated the Closing Date (and any settlement date pursuant to Section 3(b) hereof), or other evidence satisfactory to the Representative to the effect that:
(i) The Registration Statement has become effective under the Act; any required filing of the Prospectus or any supplements thereto pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any qualification in any jurisdiction has been issued and no proceedings for that purpose have been instituted or threatened; any request from the Commission for additional information has been complied with; the Registration Statement and the Prospectus (and any Underwriting Agreement 25908_2 - 75205/00002 12 supplements thereto) comply as to form in all material respects with the applicable requirements of the Act and the rules and regulations thereunder (except that such counsel need express no opinion with respect to the Financial Statements and schedules included in the Registration Statement and Prospectus).
(ii) The Company does not own or control, directly or indirectly, any corporation, partnership, association or other entity.
(iii) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and corporate authority to own its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction in which it conducts its business or owns property and in which the failure, individually or in the aggregate, to be so qualified would have a Material Adverse Effect. The Company has all necessary and material authorizations, approvals, orders, licenses, certificates and permits of and from all government regulatory officials and bodies, to own its properties and conduct its business as described in the Prospectus, except where failure to obtain such authorizations, approvals, orders, licenses, certificates or permits would not have a Material Adverse Effect.
(iv) The Company does not own any shares of capital stock or any other equity securities of any corporation or any equity interest in any firm, partnership, association or other entity other than as described in the Prospectus, except for ownership interests that would not have a Material Adverse Effect.
(v) The Company has an authorized share capitalization as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; all outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable and the certificates therefor are in valid and sufficient form in accordance with applicable state law; there are no other classes of stock outstanding except Common Stock; all outstanding options to purchase shares of Common Stock have been duly and validly authorized and issued; except as described in the Prospectus, there are no options, warrants or rights to acquire, or debt instruments convertible into or exchangeable for, or other agreements or understandings to which the Company is a party, outstanding or in existence, entitling any person to purchase or otherwise acquire any shares of capital stock of the Company; the issuance and sale of the Securities Act not later have been duly and validly authorized and, when issued and delivered and paid for, the Securities will be fully paid and nonassessable and free from preemptive rights, and will conform in all respects to the description thereof contained in the Prospectus; the Underwriters' Warrants constitute valid and binding obligations of the Company enforceable in accordance with their terms and the Company has reserved a sufficient number of shares of Common Stock for issuance upon exercise thereof; the Underwriters' Warrants possess the rights, privileges and characteristics as represented in the forms filed as Exhibits to the Registration Statement and as described in the Prospectus; the Securities (other than the close Underwriters' Warrants) have been approved for listing on AMEX upon notice of business on issuance thereof; the second business day following certificates for the Securities are in valid and sufficient form. Each offer and sale of securities of the Company described in Item 15 of Part II of the Registration Statement was effected in compliance with the Act and the rules and regulations thereunder and with all applicable Blue Sky laws.
(vi) Other than as described in the Prospectus, there is no pending or, to the best knowledge of such counsel after reasonable investigation, threatened action, suit or proceeding before any court or governmental agency, authority or body, domestic or foreign, or any arbitrator involving the Company of a character required to be disclosed in the Registration Statement or the Prospectus that is not adequately disclosed in the Prospectus, and, to the best knowledge of such counsel, there is no contract or other document of a character required to be described in the Registration Statement or the Prospectus, or to be filed as an exhibit, which is not described or filed as required.
(vii) This Agreement has been duly authorized, executed and delivered by the Company and constitutes the legal, valid and binding agreement and obligation of the Company enforceable against it in Underwriting Agreement 25908_2 - 75205/00002 13 accordance with its terms (subject to standard bankruptcy and equitable remedy exceptions, and limitations under the Act as to the enforceability of indemnification provisions).
(viii) The Company has full corporate power and corporate authority to enter into and perform its obligations under this Agreement and to issue, sell and deliver the Securities in the manner provided in this Agreement; and the Company has taken all necessary corporate action to authorize the execution and delivery of, and the performance of its obligations under, this Agreement; .
(ix) Neither the offering, issue and sale of the Securities nor the consummation of any material other of the transactions contemplated herein, nor the fulfillment of the terms hereof, will conflict with or result in a breach or violation of, or constitute a default under, or result in the imposition of a lien on any properties of the Company, or an acceleration of indebtedness pursuant to, the Articles of Incorporation (or other charter document) or bylaws of the Company, or any of the terms of any indenture or other agreement or instrument to which the Company is a party or by which its properties are bound, or any law, order, judgment, decree, rule or regulation applicable to the Company of any court, regulatory body, administrative agency, governmental body, stock exchange or arbitrator having jurisdiction over the Company. The Company is not in violation of its Articles of Incorporation or bylaws or, to the best knowledge of such counsel after reasonable investigation, in breach of or default under any of the terms of any indenture or other agreement or instrument to which it is a party or by which it or its properties are bound, which breach or default would, individually or in the aggregate, have a Material Adverse Effect.
(x) Except as disclosed in the Prospectus, no person has the right, contractual or otherwise, to cause the Company to issue to it any shares of capital stock in consequence of the issue and sale of the Securities to be sold by the Company hereunder nor does any person have preemptive rights, or rights of first refusal or other rights to purchase any of the Securities. Except as referred to in the Prospectus, no person holds a right to require or participate in a registration under the Act of Common Stock or any other equity securities of the Company.
(xi) No consent, approval, authorization or order of, or declaration or filing with, any court or governmental agency or body is required to be obtained or filed by or on behalf of the Company in connection with the transactions contemplated herein, except such as may have been obtained or made and registration of the Securities under the Act, and such as may be required under the Blue Sky laws of any jurisdiction.
(xii) To the best knowledge of such counsel after reasonable investigation, the Company is not in violation of or default under any judgment, ruling, decree or order or any statute, rule or regulation of any court or other United States governmental agency or body, including any applicable laws respecting employment, immigration and wages and hours, in each case, where such violation or default could have a Material Adverse Effect. The Company is not involved in any labor dispute, nor, to the best knowledge of such counsel, is any labor dispute threatened.
(xiii) The Company is not an investment company subject to registration under the Investment Company Act of 1940, as amended.
(xiv) The preparation and the filing of the Registration Statement with the Commission have been duly authorized by and on behalf of the Company, and the Registration Statement has been duly executed pursuant to Rule 433(dsuch authorization by and on behalf of the Company.
(xv) The Company owns or possesses, or has the right to use pursuant to licenses, sublicenses, agreements, permissions or otherwise, adequate patents, copyrights, trade names, trademarks, service marks, licenses and other intellectual property rights necessary to carry on its business as described in the Prospectus, and, except as set forth in the Prospectus, neither such counsel nor, to the knowledge of such counsel, the Company has received any notice of either (i) default under any of the foregoing or (ii) infringement of or conflict with asserted rights of others with respect to, or challenge to the validity of, any of the foregoing which, in the aggregate, if the subject of an unfavorable decision, ruling or finding, could have a Material Underwriting Agreement 25908_2 - 75205/00002 14 Adverse Effect, and counsel knows of no facts which could reasonably be anticipated to serve as the basis for any such notice. In addition, such counsel shall state that such counsel has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants of the Company and representatives of the Underwriters at which the contents of the Registration Statement and Prospectus were discussed and, although such counsel is not passing upon and does not assume responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or Prospectus (except as and to the extent stated in subparagraphs (i) and (v) above), on the basis of the foregoing and on such counsel's participation in the preparation of the Registration Statement and the Prospectus, nothing has come to the attention of such counsel that causes such counsel to believe that the Registration Statement, at the Effective Date and at the Closing Date (and any settlement date pursuant to Section 3(b) hereof), contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, at the date of such Prospectus or at the Closing Date (or any settlement date pursuant to Section 3(b) hereof), contained or contains any untrue statement of a material fact or omitted or omits to state 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 (it being understood that such counsel need express no comment with respect to the Financial Statements and schedules and other financial or statistical data derived therefrom included in the Registration Statement or Prospectus). References to the Prospectus in this Section 6(b) shall include any supplements thereto.
(c) The Representative shall have received on the Closing Date (and any settlement date pursuant to Section 3(b) hereof), the opinion of ______________, counsel for the Selling Shareholders, addressed to the Underwriters and dated the Closing Date (or any settlement date pursuant to Section 3(b) hereof), or other evidence satisfactory to the Representative to the effect that of the Underwriters, to the effect that:
(i) The Selling Shareholder has full right, power and authority to enter into and to perform its obligations under the Power of Attorney and Custody Agreement to be executed and delivered by it in connection with the transactions contemplated herein; the Power of Attorney and Custody Agreement of the Selling Shareholder has been duly authorized by the Selling Shareholder; the Power of Attorney and Custody Agreement of the Selling Shareholder has been duly executed and delivered by or on behalf of the Selling Shareholder; and the Power of Attorney and Custody Agreement of the Selling Shareholder constitutes the valid and binding agreement of the Selling Shareholder, enforceable in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors' rights generally or by general equitable principles;
(ii) Selling Shareholder has full right, power and authority to enter into and to perform its obligations under this Agreement and to sell, transfer, assign and deliver the Option Securities Act to be sold by it hereunder;
(iii) This Agreement has been duly authorized by the Selling Shareholder and has been duly executed and delivered by or on behalf of the Selling Shareholder; and
(iv) Upon the delivery of and payment for the Option Securities as contemplated in this Agreement, each of the Underwriters will receive valid marketable title to the Option Securities purchased by it from the Selling Shareholder, free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest. In rendering such opinion, such counsel may assume that the Underwriters are without notice of any defect in the title of the Option Securities being purchased from the Selling Shareholder;
(d) The Representative shall have been filed received from Wolin, Ridley & Miller LLP, couns▇▇ ▇▇▇ ▇▇▇ ▇▇der▇▇▇▇▇▇s, an opinion dated the Closing Date (and any settlement date pursuant to Section 3(b) hereof), with respect to the SEC within issuance and sale of the applicable time periods prescribed for such filings by Rule 433 under Securities, and with respect to the Securities Act.Registration Statement, the Prospectus and other related matters as the Representative may reasonably require, and
Appears in 1 contract
Sources: Underwriting Agreement (Transnational Financial Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of Execution Time and the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No The Final Prospectus, and any supplement thereto, has been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement or any notice under Rule 401(g)(2) under the Securities Act that would prevent from any governmental authority objecting to its use, use shall have been issued and no proceedings for that purpose shall have been instituted or threatened by the SEC; the Final Prospectus threatened.
(b) The Company shall have been filed with requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇ Limited, Bermuda, special Bermuda counsel for the SEC pursuant Company, to Rule 424(bhave furnished to the Representatives their opinion on matters of Bermuda law, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) Each of the Company, Renaissance Reinsurance, DaVinci Holdings and DaVinci Reinsurance is duly incorporated and existing under the Securities Act laws of Bermuda in good standing (meaning solely that the relevant company has not later than failed to make any filing with any Bermuda governmental authority under the close Companies ▇▇▇ ▇▇▇▇, or to pay any Bermuda government fee or tax, which would make it liable to be struck off the Register of Companies and thereby cease to exist under the laws of Bermuda).
(ii) The Company has the necessary corporate power and authority to execute, deliver and perform its obligations under this Agreement, the Certificate of Designation and the Deposit Agreement. The Company has the necessary corporate power and authority to conduct its business on as described in the second business day following Disclosure Package and the Prospectus. The execution and delivery of this Agreement; , the Deposit Agreement and the Certificate of Designation, the delivery of the Prospectus by the Company and the performance by the Company of its obligations under this Agreement, the Deposit Agreement, the Certificate of Designation and as otherwise contemplated by the Prospectus does not and will not violate the memorandum of association or bye-laws of the Company, Renaissance Reinsurance, DaVinci Holdings or DaVinci Reinsurance nor any material applicable law, regulation, order or decree in Bermuda.
(iii) The Company has taken all corporate action required to authorize (i) the fixing of the designations, preferences, rights and restrictions of the Securities as set out in the Certificate of Designation and (ii) its execution, delivery and performance of this Agreement and the Deposit Agreement. Each of this Agreement and the Deposit Agreement has been duly executed and delivered by or on behalf of the Company, and constitutes the valid and binding obligations of the Company in accordance with the terms thereof.
(iv) No order, consent, approval, license, authorization or validation of, filing with or exemption by any government or public body or authority of Bermuda or any sub-division thereof is required to authorize or is required in connection with (i) the issue of the Preference Shares by the Company to the Depositary pursuant to this Agreement and the Deposit Agreement against the issuance of Depositary Shares pursuant to the Deposit Agreement or (ii) the execution, delivery, performance and enforcement of this Agreement, except for the consent under the Exchange Control Act 1972 (and Regulations made thereunder) which was issued by the Bermuda Monetary Authority on 7 July 2000.
(v) It is not necessary or desirable to ensure the enforceability in Bermuda of either this Agreement or the Deposit Agreement that it be registered in any register kept by, or filed with, any governmental authority or regulatory body in Bermuda. However, to the extent that either this Agreement or the Deposit Agreement creates a charge over assets of the Company, it may be desirable to ensure the priority in Bermuda of the relevant charge that it be registered in the Register of Charges in accordance with Section 55 of the Companies ▇▇▇ ▇▇▇▇. On registration, to the extent that Bermuda law governs the priority of a charge, such charge will have priority in Bermuda over any unregistered charges, and over any subsequently registered charges, in respect of the assets which are the subject of the charge. A registration fee of $665 will be payable in respect of the registration. While there is no exhaustive definition of a charge under Bermuda law, a charge includes any interest created in property by way of security (including any mortgage, assignment, pledge, lien or hypothecation). As this Agreement is governed by the laws of the State of New York (the “Foreign Laws”), the question of whether it creates such an interest in property would be determined under the Foreign Laws.
(vi) This Agreement, the Deposit Agreement and issue of the Preference Shares will not be subject to ad valorem stamp duty in Bermuda.
(vii) Under current Bermuda law, there are no Bermuda stamp duty, transfer or similar taxes payable in respect of the Company’s deposit with the Depositary of Preference Shares pursuant to the Deposit Agreement or in respect of the issue and delivery of the Preference Shares to the Depositary or the sale and delivery of the Depositary Shares to the Underwriters or any subsequent purchasers who are not ordinarily resident in Bermuda pursuant to this Agreement and the Underwriters will not become subject to any income, franchise or other tax imposed by a government authority of Bermuda solely by reason of execution, delivery and performance of this Agreement.
(viii) Each of the Company, Renaissance Reinsurance, DaVinci Holdings and DaVinci Reinsurance has all corporate power and authority necessary to conduct the business conducted by the particular entity (without reference to or including any particular subsidiary or other company) and to own, lease and operate its properties as described in the Final Prospectus and in “Item 1 – Business” and “Item 2 – Properties” of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020.
(ix) The choice of the Foreign Laws as the governing law of this Agreement is a valid choice of law and would be recognized and given effect to in any action brought before a court of competent jurisdiction in Bermuda, except for those laws (i) which such court considers to be procedural in nature, (ii) which are revenue or penal laws or (iii) the application of which would be inconsistent with public policy, as such term is interpreted under the laws of Bermuda. The submission in this Agreement to the non-exclusive jurisdiction of the courts of the State of New York and the United States District Courts, in each case located in the Borough of Manhattan, City of New York and State of New York, or any United States Federal or New York State Court sitting in the Borough of Manhattan, the City of New York, as the case may be (the “Foreign Courts”) is valid and binding upon the Company.
(x) Based solely upon a review of copies of (i) the Register of Members of Renaissance Reinsurance, (ii) the Register of Members of DaVinci Reinsurance and (iii) the Register of Members of DaVinci Holdings, each certified by its respective Secretary or Assistant Secretary at a specified date in July 2021, all of the issued and outstanding shares of Renaissance Reinsurance, DaVinci Holdings and DaVinci Reinsurance have been duly authorized, validly issued, fully paid and are non-assessable (which term when used herein means that no further sums are required to be filed paid by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed holders thereof in connection with the SEC within the applicable time periods prescribed for such filings by Rule 433 under the Securities Act.issue
Appears in 1 contract
Sources: Underwriting Agreement (Renaissancere Holdings LTD)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Underwritten Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior the Closing Date (for purposes of this Section 6, “Closing Date” shall refer to the Closing Date (including for the filing of Firm Securities and any document incorporated by reference therein) and as of the Closing Date or any Additional Option Closing Date, as if different, for the case may beOption Securities), and to the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, as amended from time or notice objecting to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, shall have been issued by the Commission and no proceedings for that purpose shall have been instituted or threatened by threatened. The Prospectus containing the SEC; the Final Prospectus Rule 430B Information shall have been filed with the SEC pursuant to Commission in the manner and within the time period required by Rule 424(b) under without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the Securities Act not later than the close requirements of business on the second business day following the execution and delivery of this Agreement; and any Rule 430B). All material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the SEC Commission within the applicable time periods prescribed presented for such filings under Rule 433. The Company shall have paid the required Commission filing fees relating to the Securities within the time period required by Rule 433 456(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives their opinion to the effect set forth in Exhibit B attached hereto, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials.
(c) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ LLP, with respect to the opinion set forth in paragraph 1 of Exhibit C, and ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, with respect to the opinion set forth in paragraph 2 of Exhibit C, counsel for the Company, to have furnished to the Representatives their opinion as to tax issues, to the effect set forth in Exhibit C attached hereto, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials.
(d) The Company shall have requested and caused ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special Maryland counsel for the Company, to have furnished to the Representatives their opinion to the effect set forth in Exhibit D attached hereto, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials.
(e) The Representatives shall have received from Sidley Austin LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to this Agreement, the Registration Statement, the Prospectus and the Disclosure Package and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct as of the date hereof and on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement, or notice objecting to its use, has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Registration Statement, the Prospectus or the Disclosure Package (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business.
(g) At the time of the execution of this Agreement, the Representatives shall have received from Ernst & Young LLP a letter, dated such date, in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference or deemed to be incorporated by reference in the Registration Statement, the Prospectus or the Disclosure Package.
(h) At Closing Date, the Representatives shall have received from Ernst & Young LLP a letter, dated the Closing Date, to the effect that they reaffirm the statements made in the letter furnished pursuant to Section 6(g) hereof, except that the specified date referred therein to shall be a date not more than three New York business days prior to the Closing Date.
(i) Subsequent to the date hereof or, if earlier, the dates as of which information is given in the Registration Statement, the Prospectus or the Disclosure Package, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Prospectus and the Disclosure Package, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement, the Prospectus and the Disclosure Package.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(k) Subsequent to the date hereof, there shall not have been any decrease in the rating of any of the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the ▇▇▇▇ ▇▇▇) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. Nor shall any such rating organization have publicly announced that it has placed any of the Company’s debt securities or preferred stock on what is commonly termed a “watch list” for possible downgrading.
(l) The Securities Actshall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Representatives.
(m) Prior to the Closing Date, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A attached hereto from each officer and director of the Company listed on Schedule E attached hereto, addressed to the Representatives.
(n) The FINRA has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives, and the obligations of the Underwriters to purchase the Option Securities may be cancelled at, or at any time prior to, the Option Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Sidley Austin LLP, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date. The obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization, execution, authentication and issuance of the Option Securities and other matters related to the execution, authentication and issuance of the Option Securities.
Appears in 1 contract
Sources: Underwriting Agreement (UDR, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated therein by reference therein) reference), as of the Applicable Time and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No The Registration Statement has become effective and on the Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued under the Act or proceedings therefor initiated or threatened by the Commission, no notice pursuant to Rule 401(g)(2) of the Regulations shall have been received by the Company and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters. A prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). The Company shall have paid the required Commission filing fees relating to the Securities within the time period required by Rule 456(1)(i) of the Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(b) The Company shall have furnished to the Representatives the opinion of Faegre ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated and is validly existing and in good standing under the laws of the State of Delaware; and the Company has all necessary corporate power and authority to conduct its business as described in the Registration Statement, the Disclosure Package and the Prospectus;
(ii) the Company’s authorized capitalization is as set forth in the Registration Statement, the Disclosure Package and the Prospectus; and the Securities conform to the description thereof contained in the Disclosure Package and the Prospectus;
(iii) if the Securities are to be listed on the NYSE, authorization therefor has been given, subject to official notice of issuance and evidence of satisfactory distribution, or the Company has filed a preliminary listing application and all required supporting documents with respect to the Securities with the NYSE and such counsel has no reason to believe that the Securities will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution;
(iv) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act, and constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally and may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except further as enforcement thereof may be limited by governmental authority that limits, delays or prohibits the making of payments outside the United States; and the Paying Agency Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally and may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except further as enforcement thereof may be limited by governmental authority that limits, delays or prohibits the making of payments outside the United States;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) the Securities have been duly authorized and executed by the Company and, when authenticated by the Trustee in accordance with the Indenture and delivered to and paid for by the Underwriters pursuant to the Underwriting Agreement, will be duly issued and delivered by the Company and will constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture and enforceable against the Company in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally and may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except further as enforcement thereof may be limited by governmental authority that limits, delays or prohibits the making of payments outside the United States;
(vii) to the actual knowledge of such counsel, (A) there is no pending action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Registration Statement, the Disclosure Package and the Prospectus, (B) there is no action, suit or proceeding that has been threatened in writing by any governmental or regulatory authority or by others of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Registration Statement, the Disclosure Package and the Prospectus and (C) there is no franchise, contract or other document of a character required to be described in the Registration Statement, the Disclosure Package or the Prospectus or to be filed as an exhibit to the Registration Statement which was not described or filed as required;
(viii) the Registration Statement and any amendments thereto have become effective under the Act; and the Registration Statement, including without limitation the Rule 430B Information, the Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (including without limitation each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2)) (other than the financial statements, statistical information, financial data and supporting schedule included or incorporated by reference therein and other than the Form T-1, as to which such counsel need express no opinion) complied as to form in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder;
(ix) no consent, approval, authorization or order of any court or governmental agency or body under any law, statute, rule or regulation applicable to the Company is required for the consummation of the transactions contemplated in the Underwriting Agreement, except such as have been obtained under the Act and such as may be required under state securities laws in connection with the purchase and distribution of the Securities by the Underwriters;
(x) neither the issue and sale of the Securities, nor the consummation of any of the other transactions contemplated in this Agreement nor the fulfillment of the terms herein will (i) violate the charter or by-laws of the Company or any law or statute or rule or regulation of any governmental or regulatory authority applicable to the Company, (ii) to the actual knowledge of such counsel, violate any order, judgment or decree of any court or arbitrator or governmental agency or body that names the Company or any of its subsidiaries and is specifically directed to the Company, its subsidiaries or its or their property or assets or (iii) result in a breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a lien or other encumbrance on any property or assets of the Company or any of its subsidiaries pursuant to, any loan or credit agreement, indenture, mortgage, note or other agreement or instrument to which the Company or any of its subsidiaries or affiliates is a party or by which any of them or their properties or assets is bound and which has been filed as an exhibit to the Company’s Annual Report on Form 10-K for the year ended December 31, 2017, Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, 2018 and June 30, 2018 or current reports on Form 8-K filed since January 1, 2018;
(xi) The statements under the heading “Material United States Federal Income Tax Considerations” contained in the Disclosure Package and the Prospectus, to the extent that such statements summarize laws, governmental rules or regulations or documents referred to therein, constitute accurate summaries of the matters described therein in all material respects; and
(xii) The Company is not, and after giving effect to the sale of the Securities in accordance with the Underwriting Agreement and the application of the proceeds as described in the Disclosure Package and the Prospectus under the caption “Use of Proceeds,” will not be required to be registered as an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations thereunder. In addition, such counsel shall state that any required filing of each prospectus relating to the Securities (including the Prospectus) pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) (without reference to Rule 424(b)(8)); any required filing of each Issuer Free Writing Prospectus pursuant to Rule 433 has been made in the manner and within the time period required by Rule 433(d), and, to the actual knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended from time to timeamended, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, shall have has been issued and no proceedings for that purpose shall have been instituted or threatened by the SEC; the Final Prospectus shall have been filed with the SEC and no notice pursuant to Rule 424(b401(g)(2) under of the Securities Act Regulations has been received by the Company. Such counsel shall also state that it has participated in conferences with representatives of the Company and with representatives of its Independent Accountants at which conferences the contents of the Original Registration Statement, the Registration Statement, including any 430B Information, the Prospectus and the Disclosure Package and related matters were discussed and, although such counsel need not later assume any responsibility for the accuracy, completeness or fairness of such documents and any amendment or supplement thereto (except as expressly provided in the paragraphs above), nothing has come to such counsel’s attention which causes such counsel to believe that:
(A) the Original Registration Statement or any amendment thereof (other than the close financial statements, financial data and supporting schedule included or incorporated by reference therein and other than the Form T-1, as to each of business on which such counsel need express no belief), at the second business day following time the execution and delivery Original Registration Statement or any such amendment became effective, contained any untrue statement of this Agreement; and a material fact or omitted to state any material fact required to be filed stated therein or necessary to make the statements therein not misleading;
(B) the Registration Statement, including any Rule 430B Information (other than the financial statements, financial data and supporting schedule included or incorporated by reference therein and other than the Company Form T-1, as to each of which such counsel need express no belief), at the deemed effective date with respect to the Underwriters pursuant to Rule 433(d430B(f)(2) of the Regulations, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading;
(C) the Prospectus or any amendment or supplement thereto (other than the financial statements, financial data and supporting schedule included or incorporated by reference therein, as to each of which such counsel need express no belief), at the time the Prospectus was issued, at the time any such amendment or supplement thereto was issued or at the Closing Date, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(D) the Disclosure Package (other than the financial statements, financial data and supporting schedule included or incorporated by reference therein, as to each of which such counsel need express no belief), as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the States of Minnesota, other than with respect to opinions (iv), (vi), (ix) and (x), New York or, with respect to its corporation law, Delaware, or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriters; and (B) as to factual matters, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.
(c) D. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq., Senior Vice President, General Counsel and Secretary of the Company, or ▇▇▇▇ ▇. ▇▇, Chief Counsel, Corporate, Securities and M&A and Assistant Secretary of the Company, shall have furnished to the Representatives his or her written opinion, dated the Closing Date, to the effect that:
(i) the Company has been duly organized and is validly existing and in good standing under the Securities Act shall have been filed with laws of the SEC within State of Delaware; and the applicable Company has full corporate power and authority to conduct its business as described in the Registration Statement, the Disclosure Package and the Prospectus;
(ii) the Company is duly qualified to do business and is in good standing in every jurisdiction where, in light of the nature of the business transacted or the property owned by it, such qualification is necessary and the failure so to qualify might permanently impair title to property material to its operations or its right to enforce a material contract against others or expose it to substantial liabilities in such jurisdictions;
(iii) nothing has come to such counsel’s attention which causes such counsel to believe that
(A) the Original Registration Statement or any amendment thereof (other than the financial statements, financial data and supporting schedules included or incorporated by reference therein and other than the Form T-1, as to each of which such counsel need express no belief), at the time periods prescribed for the Original Registration Statement or any such filings by amendment became effective, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading;
(B) the Registration Statement, including any Rule 433 under 430B Information (other than the Securities Act.financial statements,
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, as amended from time or notice objecting to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, shall have been issued by the Commission and no proceedings for that purpose shall have been instituted or threatened by threatened. The Prospectus containing the SEC; the Final Prospectus Rule 430B Information shall have been filed with the SEC pursuant to Commission in the manner and within the time period required by Rule 424(b) under without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the Securities Act not later than the close requirements of business on the second business day following the execution and delivery of this Agreement; and any material Rule 430B). All materials required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the SEC Commission within the applicable time periods prescribed presented for such filings under Rule 433. The Company shall have paid the required Commission filing fees relating to the Securities within the time period required by Rule 433 under 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Underwriters their opinion to the effect set forth in Exhibit B attached hereto, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials.
(c) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ LLP, with respect to the opinion set forth in paragraph 1 of Exhibit C, and ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, with respect to the opinion set forth in paragraph 2 of Exhibit C, counsel for the Company, to have furnished to the Underwriters their opinion as to tax issues, to the effect set forth in Exhibit C attached hereto, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials.
(d) The Company shall have requested and caused ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special Maryland counsel for the Company, to have furnished to the Underwriters their opinion to the effect set forth in Exhibit D attached hereto, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials.
(e) The Underwriters shall have received from Sidley Austin LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Underwriters, with respect to this Agreement, the Registration Statement, the Prospectus and the Disclosure Package and other related matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Underwriters a certificate of the Company, signed by the Chairman of the Board of Directors, the President, any Senior Executive Vice President, any Senior Vice President or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct as of the date hereof and on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement, or notice objecting to its use, has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Registration Statement, the Prospectus or the Disclosure Package (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business.
(g) At the time of the execution of this Agreement, the Underwriters shall have received from Ernst & Young LLP a letter, dated such date, in form and substance satisfactory to the Underwriters, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference or deemed to be incorporated by reference in the Registration Statement, the Prospectus or the Disclosure Package.
(h) At the Closing Date, the Underwriters shall have received from Ernst & Young LLP a letter, dated the Closing Date, to the effect that they reaffirm the statements made in the letter furnished pursuant to Section 6(g) hereof, except that the specified date referred therein to shall be a date not more than three New York business days prior to the Closing Date.
(i) Subsequent to the date hereof or, if earlier, the dates as of which information is given in the Registration Statement, the Prospectus or the Disclosure Package, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Prospectus and the Disclosure Package, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriters, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities Actas contemplated by the Registration Statement, the Prospectus and the Disclosure Package.
(j) Prior to the Closing Date, the Company shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
(k) Subsequent to the date hereof, there shall not have been any decrease in the rating of any of the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization” (as defined by the Commission in Section 3(a)(62) of the ▇▇▇▇ ▇▇▇) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. Nor shall any such rating organization have publicly announced that it has placed any of the Company’s debt securities or preferred stock on what is commonly termed a “watch list” for possible downgrading.
(l) The Securities shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Underwriters.
(m) Prior to the Closing Date, the Company shall have furnished to the Underwriters a letter substantially in the form of Exhibit A attached hereto from each officer and director of the Company listed on Schedule E attached hereto, addressed to the Underwriters. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Underwriters. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Sidley Austin LLP, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (UDR, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of Execution Time and the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No The Final Prospectus, and any supplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b), any final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, use shall have been issued and no proceedings for that purpose shall have been instituted or threatened threatened.
(b) You shall have received an opinion, dated the Closing Date, of the General Counsel of the Company, to the effect that:
(i) the Company has been duly incorporated under the laws of the State of Delaware;
(ii) the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law); and the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the SECUnderwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture;
(iii) such counsel does not know of any legal or governmental proceedings required to be described in the Preliminary Prospectus or Final Prospectus in which are not described as required or of any contracts or documents of a character required to be described in the Preliminary Prospectus or Final Prospectus or to be filed as exhibits to any document incorporated by reference in the Preliminary Prospectus or Final Prospectus which are not described and filed as required;
(iv) the Registration Statement has become effective under the Act; any required filing of the Base Prospectus, any Preliminary Prospectus and the Final Prospectus shall have been filed with the SEC Prospectus, and any supplements thereto, pursuant to Rule 424(b) under ), has been made in the Securities Act not later manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any notice that would prevent its use has been issued, no proceedings for that purpose have been instituted or threatened and the Registration Statement and the Final Prospectus (other than the close financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of business the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder; and such counsel has no reason to believe that on the second business day following Effective Date the execution and delivery Registration Statement contained any untrue statement of this Agreement; and a material fact or omitted to state any material fact required to be filed stated therein or necessary to make the statements therein not misleading or that the Final Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(v) such counsel has no reason to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in the Disclosure Package at the Execution Time or as amended or supplemented, if applicable, as of the Closing Date contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading;
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in any Preliminary Prospectus, the Final Prospectus or the Disclosure Package and such other approvals (specified in such opinion) as have been obtained; and
(viii) the execution, delivery and performance by the Company pursuant of the Indenture, this Agreement and the issuance and sale of the Securities, and compliance with the terms and provisions thereof, will not result in a breach or violation of any of the material terms and provisions of, or constitute a default under any indenture, mortgage, deed of trust, bond, debenture, note or other evidence of indebtedness or any material lease, contract or other agreement or instrument known to Rule 433(dsuch counsel to which the Company or any of its subsidiaries is a party or by which the Company or any such subsidiary is bound or to which any of the properties of the Company or any such subsidiary is bound. In giving the opinions required by this subsection (b) under of this Section 6, the General Counsel of the Company (i) may limit such opinion to the laws of the State of New York, the corporate law of the State of Delaware and the Federal laws of the United States and (ii) may rely, as to matters of fact, upon the representations and warranties of the Company contained herein and upon certificates of officers of the Company and of public officials. The foregoing opinions may also be subject to such assumptions and qualifications as are satisfactory to counsel for the Underwriters.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the President or any Vice President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, the Disclosure Package and any supplements or amendments thereto, and this Agreement and that, to the knowledge of the signers:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) The Representatives shall have received a letter from KPMG LLP, dated the Closing Date, addressed and in form and substance reasonably satisfactory to the Representatives, confirming that such firm is “independent” within the meaning of the Act and covering matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Accounting Standards No. 72.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement and the Final Prospectus, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus the effect of which is, in the reasonable judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities Act as contemplated by the Registration Statement, the Disclosure Package and the Final Prospectus.
(g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 6 shall not have been filed with fulfilled when and as provided in this Agreement, or if any of the SEC within opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the applicable Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time periods prescribed for prior to, the Closing Date by the Representatives. Notice of such filings cancellation shall be given to the Company in writing or by Rule 433 under telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the Securities Actlocation specified in Schedule I hereto, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date Securities described in Sections 2(a) and the Option Shares on any Additional Closing Date, as the case may be, will 2(b) hereof shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereofExecution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date and (including in the filing case of any document incorporated by reference therein) and as of Securities delivered after the Closing Date or any Additional Closing Date, as the case may beany settlement date pursuant to Section 3 hereof), and to (ii) the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates delivered pursuant to the provisions of this Agreementhereof, to (iii) the performance and observance by the Company of all of its covenants obligations hereunder, and agreements herein contained and to (iv) the following additional conditions:
(a) No The Registration Statement shall have become effective (or, if a post-effective amendment is required to be filed pursuant to Rule 430A under the Act, such post-effective amendment shall become effective) not later than 5:00 p.m. Eastern Standard Time, on the execution date hereof or at such later date and time as the Representatives may approve in writing and, at the Closing Date (and any settlement date pursuant to Section 3(b) hereof), no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, qualification in any jurisdiction shall have been issued and no proceedings for that purpose shall have been instituted or initiated or, to the best knowledge of the Company, threatened by the SEC; the Final Prospectus Commission.
(b) The Company shall have been filed with furnished to the SEC Representatives the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, A Professional Corporation, counsel for the Company, addressed to the Underwriters and dated the Closing Date (and any settlement date pursuant to Section 3(b) hereof), or other evidence satisfactory to the Representatives to the effect that:
(i) The Registration Statement has become effective under the Act; any required filing of the Prospectus or any supplements thereto pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any qualification in any jurisdiction has been issued and no proceedings for that purpose have been instituted or threatened; any request from the Commission for additional information has been complied with; the Registration Statement and the Prospectus (and any supplements thereto) comply as to form in all material respects with the applicable requirements of the Act and the rules and regulations thereunder (except that such counsel need express no opinion with respect to the Financial Statements and schedules included in the Registration Statement and Prospectus).
(ii) To the knowledge of such counsel, the Company does not own or control, directly or indirectly, any shares of capital stock or equity interests in any corporation, partnership, association or other entity, except as set forth in the Prospectus.
(iii) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and corporate authority to own its properties and conduct its business as described in the Prospectus, and to the knowledge of such counsel is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction in which it conducts its business or owns property and in which the failure, individually or in the aggregate, to be so qualified would have a Material Adverse Effect. To the knowledge of such counsel, the Company has all necessary and material authorizations, approvals, orders, licenses, certificates and permits of and from all government regulatory officials and bodies, to own its properties and conduct its business as described in the Prospectus, except where failure to obtain such authorizations, approvals, orders, licenses, certificates or permits would not have a Material Adverse Effect.
(iv) After giving effect to the Underwritten Securities Act not later and the stock split described in the Prospectus, the Company has an authorized share capitalization as set forth in the Prospectus, and the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; all outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; there are no other classes of stock outstanding except Common Stock to such counsel's knowledge; all outstanding options to purchase shares of Common Stock have been duly and validly authorized and issued; to such counsel's knowledge except as described in the Prospectus, there are no options, warrants or rights to acquire, or debt instruments convertible into or exchangeable for, or other agreements or understandings to which the Company is a party, outstanding or in existence, entitling any person to purchase or otherwise acquire any shares of capital stock of the Company; the issuance and sale of the Securities have been duly and validly authorized and, when issued and delivered and paid for, the Securities will be fully paid and nonassessable and free from preemptive rights under the charter and bylaws of the Company, and will conform in all respects to the description thereof contained in the Prospectus; the Representatives' Warrants constitute valid and binding obligations of the Company enforceable in accordance with their terms and the Company has reserved a sufficient number of shares of Common Stock for issuance upon exercise thereof; the Representatives' Warrants possess substantially the rights, privileges and characteristics as represented in the most recent form filed as exhibits to the Registration Statement and as described in the Prospectus; the Securities (other than the close of business Representatives' Warrants) have been approved for listing on the second business day following American Stock Exchange upon notice of issuance thereof; and the certificates for the Securities are in valid and sufficient form. To our knowledge and based on the Company's records reviewed by us, each offer and sale of securities of the Company described in Item 15 of Part II of the Registration Statement was effected in compliance with the Act and the rules and regulations thereunder.
(v) To such counsel's knowledge, other than as described in the Prospectus, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body, domestic or foreign, or any arbitrator involving the Company of a character required to be disclosed in the Registration Statement or the Prospectus that is not adequately disclosed in the Prospectus, and, to the knowledge of such counsel, there is no contract or other document of a character required to be described in the Registration Statement or the Prospectus, or to be filed as an exhibit, which is not described or filed as required.
(vi) This Agreement has been duly authorized, executed and delivered by the Company and constitutes the legal, valid and binding agreement and obligation of the Company enforceable against it in accordance with its terms (subject to standard bankruptcy and equitable remedy exceptions, and limitations under the Act as to the enforceability of indemnification provisions).
(vii) The Company has full corporate power and corporate authority to enter into and perform its obligations under this Agreement and to issue, sell and deliver the Securities in the manner provided in this Agreement; and the Company has taken all necessary corporate action to authorize the execution and delivery of, and the performance of its obligations under, this Agreement.
(viii) Neither the offering, issue and sale of the Securities nor the consummation of any other of the transactions contemplated herein, nor the fulfillment of the terms hereof, will conflict with or result in a breach or violation of, or constitute a default under, or result in the imposition of a lien on any properties of the Company, or an acceleration of indebtedness pursuant to, the Articles of Incorporation (or other charter document) or bylaws of the Company, or any of the terms of any indenture or other agreement or instrument listed as an Exhibit to the Registration Statement or any law, order, judgment, decree, rule or regulation applicable to the Company of any court, regulatory body, administrative agency, governmental body, stock exchange or arbitrator having jurisdiction over the Company. The Company is not in violation of its Articles of Incorporation or bylaws.
(ix) Except as disclosed in the Prospectus, under the Company's Certificate of Incorporation, Bylaws, contracts that are listed as Exhibits to the Registration Statement or to our knowledge, no person has the right, contractual or otherwise, to cause the Company to issue to it any shares of capital stock in consequence of the issue and sale of the Securities to be sold by the Company hereunder nor does any person have preemptive rights, or rights of first refusal or other rights to purchase any of the Securities. Except as referred to in the Prospectus, no person holds a right to require or participate in a registration under the Act of Common Stock or any other equity securities of the Company.
(x) No consent, approval, authorization or order of, or declaration or filing with, any court or governmental agency or body is required to be obtained or filed by or on behalf of the Company in connection with the transactions contemplated herein, except such as may have been obtained or made and registration of the Securities under the Act, the Exchange Act, the rules and regulations promulgated thereunder, and such as may be required under the Blue Sky laws of any jurisdiction.
(xi) To the knowledge of such counsel, the Company is not in violation of or default under any judgment, ruling, decree or order or any statute, rule or regulation of any court or other United States governmental agency or body, including any applicable laws respecting employment, immigration and wages and hours, in each case, where such violation or default could reasonably be expected to have a Material Adverse Effect. To such counsel's knowledge, the Company is not involved in any labor dispute, nor is any labor dispute threatened.
(xii) The Company is not an investment company subject to registration under the Investment Company Act of 1940, as amended.
(xiii) The preparation and the filing of the Registration Statement with the Commission have been duly authorized by and on behalf of the Company, and the Registration Statement has been duly executed pursuant to such authorization by and on behalf of the Company.
(xiv) Except as set forth in the Prospectus, neither such counsel nor, to the knowledge of such counsel, the Company has received any notice of either (i) default under any licenses, sublicenses, agreements, permissions patents, copyrights, trade names, trademarks, service marks, licenses and other intellectual property rights or (ii) infringement of or conflict with asserted rights of others with respect to, or challenge to the validity of, any of the foregoing which, in the aggregate, if the subject of an unfavorable decision, ruling or finding, could reasonably be expected to have a Material Adverse Effect. In addition, such counsel shall state that such counsel has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants of the Company and representatives of the Underwriters at which the contents of the Registration Statement and Prospectus were discussed and, although such counsel is not passing upon and does not assume responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or Prospectus (except as and to the extent stated in subparagraphs (i) and (v) above), on the basis of the foregoing and on such counsel's participation in the preparation of the Registration Statement and the Prospectus, nothing has come to the attention of such counsel that causes such counsel to believe that the Registration Statement, at the Effective Date and at the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, at the date of such Prospectus or at the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel need express no comment with respect to the Financial Statements and schedules and other financial or statistical data derived therefrom included in the Registration Statement or Prospectus). References to the Prospectus in this Section 6(b) shall include any supplements thereto. In rendering such opinion, such counsel (a) may rely as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of responsible officers of the Company and public officials. Such opinion shall not state that it is to be governed or qualified by, or that it is otherwise subject to, any treatise, written policy or other document relating to legal opinions; and (b) will be entitled to assume that the consideration paid by the Underwriters for the Securities represent fair market value.
(c) The Representatives shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇ LLP, counsel for the Underwriters, an opinion dated the Closing Date (and any settlement date pursuant to Section 3 hereof), with respect to the issuance and sale of the Securities, and with respect to the Registration Statement, the Prospectus and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by its Chief Executive Officer and its Chief Financial Officer, dated the Closing Date, to the effect that each has carefully examined the Registration Statement, the Prospectus (and any supplements thereto) and this Agreement, and, after due inquiry, that:
(i) As of the Closing Date, the statements made in the Registration Statement and the Prospectus are true and correct and the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) No order suspending the effectiveness of the Registration Statement or the qualification or registration of the Securities under the securities or Blue Sky laws of any jurisdiction is in effect and no proceeding for such purpose is pending before or, to the knowledge of such officers, threatened or contemplated by the Commission or the authorities of any such jurisdiction; and any material request for additional information with respect to the Registration Statement or the Prospectus on the part of the staff of the Commission or any such authorities brought to the attention of such officers has been complied with to the satisfaction of the staff of the Commission or such authorities.
(iii) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (x) there has not been any change in the capital stock or long-term debt of the Company required to be filed disclosed in the Registration Statement, except as set forth in or contemplated by the Registration Statement and the Prospectus, (y) there has not been any material adverse change in the general affairs, business, prospects, properties, management, results of operations or condition (financial or otherwise) of the Company, whether or not arising from transactions in the ordinary course of business, in each case, other than as set forth in or contemplated by the Registration Statement and the Prospectus, and (z) the Company pursuant to Rule 433(d) under the Securities Act shall have been filed has not sustained any material interference with the SEC within the applicable time periods prescribed for such filings by Rule 433 under the Securities Act.its business or properties from fire, explosion, flood or
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate certificates furnished pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No For the period from and after effectiveness of this Agreement and prior to the Closing Date:
(i) no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under post-effective amendment to the Securities Act that would prevent its useRegistration Statement, shall have been issued be in effect and no proceedings for that such purpose shall have been instituted or threatened by the SEC; Commission, and the Final Prospectus Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to use of the automatic shelf registration statement form (unless the Shares are duly registered in the manner contemplated by Rule 401(g)(2) to the satisfaction of the Representative prior to the Closing Date);
(ii) the Company shall have been filed the preliminary prospectus and the Prospectus with the SEC pursuant to Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430B, and such post-effective amendment shall have become effective (if not later than automatically effective under the close rules of business on the second business day following Commission); 9
(iii) the execution and delivery of this Agreement; Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act Act, shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule or, to the extent applicable, under Rule 164(b); and
(iv) the Financial Industry Regulatory Authority, Inc. ("FINRA") shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(b) The Company shall have furnished to the Representative the opinion of McGuireWoods LLP, counsel for the Company, dated the Closing Date, to the effect of paragraphs (i) and (v) through (xiv) below, and the opinion of the General Counsel of the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) through (iv) below:
(i) the Company is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware, has the corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and the Prospectus, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the "Principal Subsidiary Bank") is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) each of the Company and the Principal Subsidiary Bank is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the Company or the Principal Subsidiary Bank, as the case may be, is required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock of the Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and (except as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except as otherwise set forth in the Disclosure Package and the Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors' qualifying shares) are owned, directly or indirectly, by Rule 433 the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens or encumbrances;
(iv) such counsel is without knowledge that there is (1) any pending or threatened action, suit or proceeding before or by any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement, the Disclosure Package or the Prospectus which is omitted or not adequately disclosed therein, or (2) any franchise, contract or other document of a character required to be described in the Registration Statement, the Disclosure Package or the Prospectus, or to be filed as an exhibit to the Registration Statement, is not so described or filed as required; 10
(v) the Deposit Agreement, the Depositary Shares and the Preferred Stock conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Prospectus;
(vi) the Company has filed a preliminary listing application and all required supporting documents with respect to the Depositary Shares with the New York Stock Exchange, and such counsel has received no information stating that the Depositary Shares will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution;
(vii) the Registration Statement became effective under the Securities Act automatically upon its filing; no stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment to the Registration Statement, has been issued, and such counsel is without knowledge that any proceeding for that purpose has been instituted or threatened, or that the Company has received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form; and the Registration Statement, the Disclosure Package and the Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements under the Securities Act and the Exchange Act;
(viii) this Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by you, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in this Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and similar bank regulatory powers and to the application of principles of public policy;
(ix) no consent, approval, authorization or order of any court or governmental agency or body in the United States is necessary or required on behalf of the Company for the consummation of the transactions contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the blue sky, state securities or insurance or similar laws of the United States in connection with the purchase and distribution of the Depositary Shares by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(x) the shares of Preferred Stock, and any shares of Preferred Stock as to which the over-allotment option granted in Section 2 of this Agreement has been exercised, have been duly authorized and, when paid for as contemplated herein, will be duly issued, fully paid and nonassessable; 11
(xi) the Depositary Shares, including any Depositary Shares subject to the over-allotment option granted in Section 2 of this Agreement, have been duly and validly authorized for issuance and sale, and, when the Initial Shares and any Option Shares are issued and delivered against payment therefor pursuant to this Agreement, the Depositary Shares will be duly and validly issued and fully paid and non-assessable; and all corporate action required to be taken for the authorization, issue and sale of the Depositary Shares has been validly and sufficiently taken and the Depositary Shares represent legal and valid interests in the Preferred Stock;
(xii) neither the issuance and sale of the Preferred Stock or the Depositary Shares, nor the consummation of any other of the transactions herein contemplated or contemplated by the Deposit Agreement nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach of, or constitute a default under (1) the certificate of incorporation or by-laws of the Company, each as amended to date, (2) the terms of any indenture or other material agreement or instrument known to such counsel and to which the Company or the Principal Subsidiary Bank is a party or bound, or (3) any order, law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Principal Subsidiary Bank;
(xiii) the Deposit Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the other parties thereto, constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and similar bank regulatory powers and to the application of principles of public policy; and
(xiv) such counsel is without knowledge of any rights to the registration of securities of the Company under the Registration Statement which have not been waived by the holders of such rights or which have not expired by reason of lapse of time following notification of the Company's intention to file the Registration Statement. In rendering such opinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no view as to portions of the Registration Statement, the Disclosure Package, or the Prospectus consisting of financial statements and other financial, accounting and statistical information and it has not independently verified, is not passing upon and assumes no responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package, or the Prospectus or any amendment or supplement thereto (other than as stated in (v) above), it has no reason to believe that such remaining portions of the Registration Statement or any amendment thereto as of the time it became effective, as of the Initial Sale Time or as of the date of such opinion, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that, subject to the foregoing with respect to financial statements and other financial, accounting and statistical information, the Disclosure Package, taken as a whole, as of the Initial Sale Time, contained an 12 untrue statement of a material fact or omitted to state a material fact necessary to make the statement therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, as amended or supplemented, as of its date or as of the date of such opinion contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel also need not pass upon nor assume any responsibility for ascertaining whether or when any of the information contained in each Disclosure Package was conveyed to any purchaser of the Depositary Shares. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of North Carolina, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, upon the opinion of counsel to the Underwriters, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriters; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.
(c) The Representative shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Initial Shares, the Registration Statement, the Disclosure Package and the Prospectus and any other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representative a certificate of the Company, signed by any Senior Vice President or Treasurer or any other authorized officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and this Agreement and they are without knowledge that:
(i) the representations and warranties of the Company in this Agreement are not true and correct with the same force and effect as though expressly made at and as of the Closing Date and the Company has not performed or complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) any stop order suspending the effectiveness of the Registration Statement has been issued or any proceedings for that purpose have been instituted or threatened by the Commission; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus, there has been any material adverse change or any development involving a prospective material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus. 13
(e) At the time this Agreement is executed, PricewaterhouseCoopers LLP shall have furnished to the Representative a letter or letters (which may refer to letters previously delivered to one or more of the Representative), dated as of the date of this Agreement, in form and substance satisfactory to the Representative, confirming that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) They are an independent registered public accounting firm with respect to the Company within the meaning under the Securities Act and the applicable rules and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (United States).
(ii) In their opinion, the consolidated financial statements of the Company and its subsidiaries audited by them and
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Issuers contained herein, herein as of the date hereof, as of Execution Time and the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Issuers made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company Issuers of all of its covenants and agreements herein contained their obligations hereunder and to the following additional conditions:
(a) No The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement or any notice under Rule 401(g)(2) under the Securities Act that would prevent objecting to its use, use shall have been issued and no proceedings for that purpose shall have been instituted or threatened threatened.
(b) The Company shall have furnished to the Representative the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇, Senior Vice President and General Counsel of the Company, dated the Closing Date and addressed to the Representative, to the effect that:
(i) each of the Company and its subsidiaries has been duly organized and is validly existing and is in good standing under the laws of the jurisdiction in which it is chartered or organized with full power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except in each case as would not, singly or in the aggregate, have a Material Adverse Effect;
(ii) each Issuer has the power and authority to execute and deliver this Agreement, the Indenture and the Securities and to perform its obligations thereunder;
(iii) all the outstanding shares of capital stock of each Significant Subsidiary that is a corporation have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Disclosure Package and the Final Prospectus, all outstanding shares of capital stock of the Significant Subsidiaries (other than Allegiant Insurance Company, Inc., a Risk Retention Group) are owned by the SECCompany either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iv) the Company’s authorized equity capitalization is as set forth in the Disclosure Package and the Final Prospectus;
(v) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in any Preliminary Prospectus and the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or the Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required;
(vi) neither the execution and delivery of this Agreement, the Indenture, the issue and sale of the Securities nor the consummation of any other of the transactions contemplated by this Agreement nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of the Guarantors pursuant to, (x) the charter or by-laws of the Company or any of the Guarantors, (y) the terms of any agreement that is listed as an exhibit to the Company’s Annual Report on Form 10-K for the year ended December 31, 2012 or any subsequent filing by the Company under the Exchange Act or any other indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or the Guarantors is a party or bound or to which its or their property is subject that is known to such counsel, or (z) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Guarantors of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Guarantors or any of its or their properties, except, in the case of clause (y) or (z), as would not, singly or in the aggregate, have a Material Adverse Effect;
(vii) no holders of securities of the Company have rights to the registration of such securities under the Registration Statement; and
(viii) neither the Company nor any Guarantor is and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Final Prospectus, will be an “investment company” as defined in the Investment Company Act of 1940, as amended. In rendering such opinion, such counsel may assume as to matters involving the application of laws of any jurisdiction other than the State of Colorado and the General Corporation Law of the State of Delaware (collectively, the “Subject States’ Laws”) and the Federal laws of the United States, to the extent they deem proper and specified in such opinion, that insofar as the opinions expressed relate to matters governed by state law other than the Subject States’ Laws, the relevant laws of such other states, and their application to such matters, are and would be the same as the laws which would be applicable to such matters if such agreement were governed by and construed and enforced in accordance with the laws (other than the law governing conflict of law matters) of the State of Colorado. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) ▇▇▇▇▇ ▇▇▇▇ LLP, counsel for the Issuers, shall have been filed with furnished to the SEC Representative an opinion, dated the Closing Date and addressed to the Representative, to the effect that:
(i) the Registration Statement has become effective under the Act; all required filings pursuant to Rule 424(b) under the Securities Act not later have been made in the manner and within the time period required by such Rule; to the knowledge of such counsel, (i) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued by the Commission, and (ii) no proceedings for that purpose have been instituted or threatened by the Commission; and the Registration Statement as of the time it became effective and the Final Prospectus as of its date (other than the close financial statements, the related notes and schedules and other financial information and statistical data, including, without limitation, all pro forma financial data, contained or incorporated by reference therein or omitted therefrom, as to which such counsel express no opinion) comply as to form in all material respects with the applicable requirements of business the Act, the Exchange Act and the Trust Indenture Act and the applicable respective rules thereunder;
(ii) the statements included in the Preliminary Prospectus and the Final Prospectus under the heading “Certain United Stated Federal Income Tax Considerations” fairly summarize the matters therein described in all material respects;
(iii) the statements included or incorporated by reference in the Preliminary Prospectus and the Final Prospectus under the headings “Description of Debt Securities” and “Description of Notes” constitute accurate summaries of the terms of the Indenture, the Notes and the Guarantees in all material respects;
(iv) the Indenture has been duly authorized by the requisite corporate or limited partnership action, as the case may be, on the second business day following part of the Company and the Guarantors, has been duly executed and delivered by the Company and the Guarantors, and has been duly qualified under the Trust Indenture Act; the Indenture constitutes a legal, valid and binding obligation of the Issuers, enforceable against the Issuers in accordance with its terms;
(v) the Notes have been duly authorized by the requisite corporate action on the part of the Company, and have been duly executed by the Company; the Notes, when authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, and will be entitled to the benefits of the Indenture;
(vi) the Guarantees have been duly authorized by the requisite corporate or limited partnership action, as the case may be, on the part of the Guarantors and have been duly executed by the Guarantors; when the Notes are authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, each Guarantee will constitute the legal, valid and binding obligation of the Guarantors, enforceable against such Guarantor in accordance with its terms;
(vii) this Agreement has been duly authorized by all requisite corporate or limited partnership action, as the case may be, on the part of the Company and the Guarantors and has been duly executed and delivered by the Company and the Guarantors; and
(viii) no consent, approval, authorization, filing with or order of (i) any State of Delaware court or governmental agency or body, in each case solely under the General Corporation Law of the State of Delaware, or (ii) any State of New York, State of Colorado or United States federal court or governmental agency or body is required for the due execution and delivery of this Agreement; and any material required to be filed by the Company or the Guarantors of, and the performance by the Company and the Guarantors of the acts required by, the Transaction Documents, except such as have been obtained under the Act, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement, the Disclosure Package and the Final Prospectus. In addition, such counsel shall also state that it has participated in conferences with officers and other representatives of the Company and the Guarantors (as you and your counsel have done); that at such conferences it has made inquiries of such officers and representatives and discussed the contents of the Registration Statement, the Disclosure Package and the Final Prospectus; and that it is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Final Prospectus, except as expressly set forth in paragraphs (ii) and (iii) above. However, subject to the foregoing, such counsel shall state that no facts have come to its attention that have caused it to believe (i) that the Registration Statement, as of its Effective Date, contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, (ii) that the Disclosure Package, at the Execution Time, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) that the Final Prospectus, as of its date or on the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that, in each case, such counsel may state that it expresses no view as to the financial statements, the related notes and schedules and other financial information and statistical data, including, without limitation, all pro forma financial data, contained or incorporated by reference in the Registration Statement, the Disclosure Package or the Final Prospectus. In rendering such opinion, such counsel may limit its opinion to (i) the laws of the State of New York and the federal laws of the United States of America, (ii) with respect to its opinions in paragraphs (iv), (v), (vi), (vii) and (viii) with respect to the Company and the Guarantors organized in the State of Delaware, the General Corporation Law of the State of Delaware, (iii) with respect to its opinions in paragraphs (iv), (vi), (vii) and (viii) with respect to the Guarantors organized in the State of Colorado, the laws of the State of Colorado, (iv) with respect to its opinions in paragraphs (iv), (vi) and (vii) with respect to the Guarantor organized in the State of Maryland, the General Corporation Law of the State of Maryland, and (v) with respect to its opinions in paragraphs (iv), (vi) and (vii) with respect to the Guarantor organized in the State of Virginia, the Stock Corporation Act of the Commonwealth of Virginia. In rendering such opinion, such counsel may rely (A) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials and (B) for purposes of the opinions in paragraphs (iv), (v), (vi) and (vii), on paragraphs (i) and (vii) in the opinion given pursuant to Rule 433(dSection 6(b). References to the Final Prospectus in this paragraph (c) under shall also include any supplements thereto at the Securities Act Closing Date.
(d) The Representative shall have been filed received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative a certificate of the Company, signed by the principal financial or accounting officer of the Company and an executive vice president, vice president, manager or officer of the general partner of each of the Guarantors, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show, if any, used in connection with the SEC offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Issuers in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect.
(f) The Company shall have requested and caused Ernst & Young LLP to have furnished to the Representative, at the Execution Time and at the Closing Date, “comfort letters,” in form and substance satisfactory to the Representative, confirming that they are an independent registered public accounting firm within the applicable time periods prescribed for such filings by Rule 433 under meaning of the Securities Act.Act and the E
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate certificates furnished pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No For the period from and after effectiveness of this Agreement and prior to the Closing Time on the Closing Date:
(i) no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under post-effective amendment to the Securities Act that would prevent its useRegistration Statement, shall have been issued be in effect and no proceedings for that such purpose shall have been instituted or threatened by the SEC; Commission, and the Final Prospectus Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to use of the automatic shelf registration statement form (unless the Securities are duly registered in the manner contemplated by Rule 401(g)(2) to the satisfaction of the Representative prior to the Closing Date);
(ii) the Company shall have been filed the preliminary prospectus and the Prospectus with the SEC pursuant to Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430B, and such post-effective amendment shall have become effective (if not later than automatically effective under the close rules of business on the second business day following Commission);
(iii) the execution and delivery of this Agreement; Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act Act, shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule or, to the extent applicable, under Rule 164(b);
(iv) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements;
(v) the Securities and the Underlying Shares shall have been approved for listing on the NYSE, subject to official notice of issuance; and
(vi) the lock-up letters, each substantially in the form of Exhibit A hereto, executed by Rule 433 certain officers of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(b) The Company shall have furnished to the Underwriters the opinion of McGuireWoods LLP, counsel for the Company, dated the Closing Date and given as of the Closing Time on the Closing Date, to the effect of paragraphs (i) and (v) through (xii) below, and the opinion of the General Counsel of the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) through (iv) below:
(i) the Company is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware, has the corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and the Prospectus, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the “Principal Subsidiary Bank”) is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) each of the Company and the Principal Subsidiary Bank is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the Company or the Principal Subsidiary Bank, as the case may be, is required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock of the Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and (except as provided in 12 U.S.C. §55, as amended) nonassessable, and, except as otherwise set forth in the Disclosure Package and the Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors’ qualifying shares) are owned, directly or indirectly, by the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens or encumbrances;
(iv) such counsel is without knowledge that there is (1) any pending or threatened action, suit or proceeding before or by any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement, the Disclosure Package or the Prospectus which is omitted or not adequately disclosed therein, or (2) any franchise, contract or other document of a character required to be described in the Registration Statement, the Disclosure Package or the Prospectus, or to be filed as an exhibit to the Registration Statement, which is not so described or filed as required;
(v) the Deposit Agreement, the Securities, the Depositary Shares, the Common Equivalent Stock, the Contingent Warrants and the Common Stock conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Prospectus;
(vi) the Company has filed a preliminary listing application and all required supporting documents with respect to the Securities and the Underlying Shares with the NYSE, and such counsel has received no information stating that the Securities and the Underlying Shares will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution;
(vii) the Registration Statement became effective under the Securities Act automatically upon its filing; no stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment to the Registration Statement, has been issued, and such counsel is without knowledge that any proceeding for that purpose has been instituted or threatened, or that the Company has received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form; and the Registration Statement, the Disclosure Package and the Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements under the Securities Act and the Exchange Act;
(viii) this Agreement and the Deposit Agreement each have been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in this Agreement and the Deposit Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and similar bank regulatory powers and to the application of principles of public policy;
(ix) no consent, approval, authorization (other than the Stockholder Approval of the Amendment and the filing and acceptance of the Amendment with and by the Secretary of State of the State of Delaware) or order of any court or governmental agency or body in the United States is necessary or required on behalf of the Company for the consummation of the transactions contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the blue sky, state securities or insurance or similar laws of the United States in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(x) the Securities have been duly and validly authorized for issuance and sale, and, when issued and delivered against payment therefore pursuant to this Agreement, the Securities will be duly and validly issued and fully paid and nonassessable; and all corporate action required to be taken for the authorization, issue and sale of the Securities has been validly and sufficiently taken;
(xi) the shares of Common Equivalent Stock have been duly authorized and, when paid for as contemplated herein, will be duly and validly issued, fully paid and nonassessable;
(xii) the Depositary Shares have been duly and validly authorized, and, when issued and delivered against payment therefor pursuant to this Agreement, the Depositary Shares will be duly and validly issued and fully paid and non-assessable; and all corporate action required to be taken for the authorization of the Depositary Shares has been validly and sufficiently taken and the Depositary Shares represent legal and valid interests in the Common Equivalent Stock;
(xiii) the Contingent Warrants have been duly authorized and, upon payment for, due execution and delivery in accordance with this Agreement, the form of Contingent Warrant and the Warrant Agent Agreement, the Warrants will be valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in this Agreement and the Warrant Agent Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and similar bank regulatory powers and to the application of principles of public policy;
(xiv) the Underlying Shares have been duly authorized, and when issued in accordance with the terms and conditions of the Common Equivalent Stock or the Contingent Warrants, as applicable, will be duly issued, fully paid and nonassessable;
(xv) neither the issuance and sale of the Securities, the Depositary Shares, the Common Equivalent Stock, the Contingent Warrants and the Underlying Shares, if issued, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof, in accordance with the terms and conditions of the Securities, the Depositary Shares, the Common Equivalent Stock, the Contingent Warrants and the Underlying Shares, will conflict with, result in a breach of, or constitute a default under (1) the certificate of incorporation or by-laws of the Company, each as amended to date, (2) the terms of any indenture or other material agreement or instrument known to such counsel and to which the Company or the Principal Subsidiary Bank is a party or bound, or (3) any order, law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Principal Subsidiary Bank; and
(xvi) such counsel is without knowledge of any rights to the registration of securities of the Company under the Registration Statement which have not been waived by the holders of such rights or which have not expired by reason of lapse of time following notification of the Company’s intention to file the Registration Statement. In rendering such opinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no view as to portions of the Registration Statement, the Disclosure Package, or the Prospectus consisting of financial statements and other financial, accounting and statistical information and it has not independently verified, is not passing upon and assumes no responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package, or the Prospectus or any amendment or supplement thereto (other than as stated in (v) above), it has no reason to believe that such remaining portions of the Registration Statement or any amendment thereto as of the time it became effective, as of the Initial Sale Time or as of the date of such opinion, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that, subject to the foregoing with respect to financial statements and other financial, accounting and statistical information, the Disclosure Package, taken as a whole, as of the Initial Sale Time or as of the date of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statement therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, as amended or supplemented, as of its date or as of the date of such opinion contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel also need not pass upon nor assume any responsibility for ascertaining whether or when any of the information contained in each Disclosure Package was conveyed to any purchaser of the Securities. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the States of North Carolina and New York, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, or upon the opinion of counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriters; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.
(c) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion, dated the Closing Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package and the Prospectus and any other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and Finger, special Delaware counsel for the Company, such opinion, dated the Closing Date, with respect to certain matters of Delaware law, to the effect that (i) the Securities have been duly and validly authorized for issuance and sale, and, when issued and delivered against payment therefore pursuant to this Agreement, the Securities will be duly and validly issued and fully paid and nonassessable; and (ii) all corporate action required to be taken for the authorization, issue and sale of the Securities has been validly and sufficiently taken.
(e) The Company shall have furnished to the Underwriters a certificate of the Company, signed by any Senior Vice President or Treasurer or any other authori
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, as of herein at the date hereof, as of Execution Date and the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No The Registration Statement has become effective and on the Closing Date no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) Statement shall have been issued under the Securities Act that would prevent its use, shall have been issued and no or proceedings for that purpose shall have been instituted therefor initiated or threatened by the SEC; Commission, and any request on the Final Prospectus part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters. A prospectus containing the Rule 430B Information shall have been filed with the SEC Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). The Company shall have paid the required Commission filing fees relating to the Securities within the time period required by Rule 456(1)(i) of the Securities Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or the cover page of a prospectus filed pursuant to Rule 424(b).
(b) The representations and warranties of the Company hereunder shall be true as of the Execution Date, as of the Applicable Time and as of the Closing Date in all material respects and shall be confirmed by the certificate dated as of the Closing Date as provided in Sections 5(f) below, it being understood that references to the Prospectus shall be deemed to refer to the Prospectus, as then amended or supplemented.
(c) The Representatives shall have received an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Company, dated as of Closing Date and addressed to the Representatives, substantially in the form of Exhibit A hereto.
(d) The Representatives shall have received an opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Counsel of PPL Services Corporation, dated as of Closing Date and addressed to the Representatives, substantially in the form of Exhibit B hereto.
(e) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, shall have furnished to the Representatives such opinion or opinions, dated the Closing Date, in form and substance satisfactory to the Representatives.
(f) The Company shall have furnished to the Representatives a certificate of the Company, signed by (A) the President or any Senior Vice President, Vice President or the Treasurer, and (B) the Assistant Treasurer or Controller of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Prospectus, any amendment or supplement to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, it being understood that references to the Prospectus shall be deemed to refer to the Prospectus as then amended or supplemented;
(ii) the Company has complied in all material respects with all agreements and covenants and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and
(iii) since the date of the most recent financial statements included in the Prospectus, there shall not have occurred any material adverse change in the financial position or results of operations of the Company, except as set forth in or contemplated by the Prospectus or in any amendment or supplement thereto.
(g) At the Execution Date and (with respect to Ernst & Young LLP) at the Closing Date, the Company shall have requested and caused each of PricewaterhouseCoopers LLP and Ernst & Young LLP to furnish to the Representatives letters, dated respectively as of the date of execution of this Agreement and (with respect to Ernst & Young LLP) as of the Closing Date, in form and substance satisfactory to the Representatives and each of PricewaterhouseCoopers LLP and Ernst & Young LLP.
(h) Subsequent to Execution Date or, if earlier, the dates as of which information is given in the Prospectus, as then amended or supplemented, there shall not have been any change in or affecting the business or properties of the Company, the effect of which is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to market the Securities as contemplated by the Prospectus.
(i) Subsequent to the Execution Date, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act not later than Act) and no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the close of business on the second business day following the execution and delivery of this Agreement; and any material required to be filed by the Company pursuant to Rule 433(dCompany’s securities.
(j) under the Securities Act The Deposit Agreement shall have been filed duly executed and delivered by each of the parties thereto.
(k) Between the date hereof and the Closing Date, no order, decree or injunction of any court of competent jurisdiction, nor any order, ruling, regulation or administrative proceeding by any governmental body or board shall have been issued or commenced, nor shall any legislation have been enacted, with the SEC within purpose or effect of prohibiting the applicable time periods prescribed for such filings by Rule 433 under issuance, offering or sale of the Securities Actas contemplated hereby or by the Prospectus or the execution or performance of this Agreement or the Deposit Agreement in accordance with their respective terms.
(l) On the Closing Date, there shall be in effect ratings for the Preference Stock of “BBB” by Standard & Poor’s Ratings Service, a Division of The ▇▇▇▇▇▇-▇▇▇▇ Companies and “Baa3” by ▇▇▇▇▇’▇ Investors Service, Inc. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and the Authority in writing or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Sources: Underwriting Agreement (PPL Electric Utilities Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Capital Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Offerors contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or [and any Additional Option Closing Date], as the case may be, and to the accuracy of the statements of the Company’s officers of the Company or trustees of the Trust made in any certificate certificates furnished pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all Offerors of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No For the period from and after effectiveness of this Agreement and prior to the Closing Date [and any Option Closing Date]:
(i) no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under post-effective amendment to the Securities Act that would prevent its useRegistration Statement, shall have been issued be in effect and no proceedings for that such purpose shall have been instituted or threatened by the SEC; Commission, and the Final Prospectus Company and the Trust shall not have received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to use of the automatic shelf registration statement form (unless the Capital Securities are duly registered in the manner contemplated by Rule 401(g)(2) to the satisfaction of the Representatives prior to the Closing Date);
(ii) the Company shall have been filed [the preliminary prospectus and] the Prospectus with the SEC pursuant to Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430B, and such post-effective amendment shall have become effective (if not later than automatically effective under the close rules of business on the second business day following Commission);
(iii) the execution and delivery of this Agreement; Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act Act, shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule or, to the extent applicable, under Rule 164(b); and
(iv) Financial Industry Regulatory Authority, Inc. (“FINRA”) shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(b) At the Closing Date, the Representatives shall have received:
(i) The opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company and the Trust, dated as of the Closing Date [and any Option Closing Date], to the effect of paragraphs (D) through (P) and (S) below, and the opinion of the General Counsel to the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date [and any Option Closing Date], to the effect of paragraphs (A), (B), (C), (Q) and (R) below:
(A) The Company is a duly organized and validly existing corporation in good standing under the laws of the State of Florida and has the corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and the Prospectus.
(B) The Company is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the Company is required to be so qualified or licensed.
(C) Such counsel is without knowledge that (1) there is any pending or threatened action, suit or proceeding before or by any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement, the Disclosure Package or the Prospectus which is omitted or not adequately disclosed therein, or (2) any franchise, contract or other document of a character required to be described in the Registration Statement, the Disclosure Package or the Prospectus, or to be filed as an exhibit to the Registration Statement, is not so described or filed as required.
(D) The Registration Statement became effective under the Securities Act automatically upon its filing; no stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment to the Registration Statement, has been issued and such counsel is without knowledge that any proceeding for that purpose has been instituted or threatened, or that the Company or the Trust has received from the Commission any notice pursuant to Rule 433 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form; and the Registration Statement, the Disclosure Package and the Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements under the Securities Act, the Exchange Act and the Trust Indenture Act.
(E) This Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the Underwriters, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except to the extent that enforcement thereof may be limited by the Permitted Exceptions;
(F) No consent, approval, authorization or order of any court or governmental agency or body in the United States is necessary or required on behalf of the Company or the Trust in connection with the offering, issuance or sale of the Capital Securities, the Capital Securities Guarantee and the Junior Subordinated Notes by the Offerors, except (A) such as may be required under the Securities Act and such as may be required under the blue sky, state securities, insurance or similar laws of the United States, and (B) the qualification of the Declaration, the Capital Securities Guarantee Agreement and the Indenture under the Trust Indenture Act.
(G) The Declaration has been duly authorized, executed and delivered by the Company and the Regular Trustees and has been duly qualified under the Trust Indenture Act.
(H) Each of the Guarantee Agreements has been duly authorized, executed and delivered by the Company; the Capital Securities Guarantee Agreement, assuming it is duly authorized, executed and delivered by the Guarantee Trustee, constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that enforcement thereof may be limited by the Permitted Exceptions; and the Capital Securities Guarantee Agreement has been duly qualified under the Trust Indenture Act. The Common Securities Guarantee Agreement constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except to the extent that enforcement thereof may be limited by the Permitted Exceptions. The Guarantees and the Guarantee Agreements conform in all material respects to the descriptions thereof in the Disclosure Package and the Prospectus.
(I) The Indenture has been duly authorized, executed and delivered by the Company, and assuming due authorization, execution, and delivery by the Debt Trustee, is a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that enforcement thereof may be limited by the Permitted Exceptions; the Indenture has been duly qualified under the 1939 Act; and the Indenture conforms in all material respects to the description thereof in the Disclosure Package and the Prospectus, as supplemented or amended.
(J) The Junior Subordinated Notes have been duly authorized and, when executed and authenticated in the manner provided in the Indenture and delivered against payment therefore, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except to the extent that enforcement thereof may be limited by the Permitted Exceptions; and the Junior Subordinated Notes conform in all material respects to the description thereof in the Disclosure Package and the Prospectus, as supplemented or amended.
(K) Neither the Company nor the Trust is, and upon the issuance and sale of the Securities as herein contemplated and the application of the net proceeds therefrom as described in the Disclosure Package and the Prospectus neither will be, an “investment company” or a company “controlled” by an “investment company” within the meaning of the 1940 Act.
(L) The forms of the Common Securities and the Capital Securities and the Declaration conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Prospectus.
(M) All of the issued and outstanding Common Securities of the Trust are directly owned by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equitable right.
(N) The Trust is not a party to or otherwise bound by any agreement other than those described in the Disclosure Package and the Prospectus.
(O) This Agreement has been duly executed and delivered by the Trust.
(P) Neither the issuance and sale of the Junior Subordinated Notes or the Guarantees, nor the consummation of any other of the transactions herein contemplated or contemplated by the Indenture or the Guarantee Agreements, nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach of, or constitute a default under (1) the articles of incorporation or by-laws of the Company, each as amended to date, or (2) any order, law or regulation known to such counsel to be applicable to the Company of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company.
(Q) Neither the issuance and sale of the Junior Subordinated Notes or the Guarantees, nor the consummation of any other of the transactions herein contemplated or contemplated by the Indenture or the Guarantee Agreements, nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach of, or constitute a default under the terms of any indenture or other material agreement or instrument known to such counsel and to which the Company is a party or bound.
(R) If the [Firm] Capital Securities are to be listed on the Stock Exchange, authorization therefore has been given, subject to official notice of issuance and evidence of satisfactory distribution, or the Offerors have filed a preliminary listing application and all required supporting documents with respect to the [Firm] Capital Securities to be filed with the [NYSE] and such counsel has received no information stating that the [Firm] Capital Securities will not be authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution.
(S) Such counsel is without knowledge of any rights to the registration of securities of the Company under the Registration Statement which have not been waived by the holders of such rights or which have not expired by reason of lapse of time following notification of the Company’s intention to file the Registration Statement. In rendering such opinion, such counsel shall also state that, although it has participated in conferences with representatives of the Underwriters and with representatives of the Company, its counsel and its accountants concerning the Registration Statement, the Disclosure Package and the Prospectus and has considered the matters required to be stated therein and the statements contained therein, such counsel has not independently verified the accuracy, completeness or fairness of such statements. Such counsel also need not pass upon, nor assume any responsibility for, ascertaining whether or when any of the information contained in the Disclosure Package was conveyed to any purchaser of the Capital Securities. Such counsel shall state that based upon and subject to the foregoing, nothing has come to such counsel’s attention that leads it to believe that (i) the Registration Statement, at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the documents and information comprising the Disclosure Package, taken as a whole as of the Initial Sale Time, contained an untrue statement of material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (iii) the Prospectus, as of its date, at the time it was filed with the Commission pursuant to Rule 424(b) under the Securities Act or as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel has not been requested to and does not make any comment in this paragraph with respect to the financial statements, supporting schedules, footnotes, and other financial information contained in the Registration Statement, the Disclosure Package or the Prospectus). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States to the extent deemed proper and specified in such opinion, upon the opinion of the General Counsel of the Company, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriters; and (B) as to matters of fact, to the extent deemed proper, on the representations and warranties of the Offerors contained herein or in the Declaration, the Indenture, the Guarantee Agreements, that certain subscription agreement, of even date herewith, between the Company and the Trust covering the Common Securities and that certain note purchase agreement, of even date herewith, between the Company and the Trust, or on certificates of responsible officers of the Company and its subsidiaries and public officials.
(ii) The opinion of [ ], special Delaware counsel to the Offerors, dated the date of the Closing Date [and any Option Closing Date] in form and substance satisfactory to counsel for the Underwriters, to the effect that:
(A) The Trust has been duly created and is validly existing in good standing as a statutory trust under the Delaware Act; all filings required under the laws of the State of Delaware with respect to the formation and valid existence of the Trust as a statutory trust have been made; the Trust has all necessary power and authority to own property and to conduct its business as described in the Registration Statement, the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement, the [Firm] Capital Securities and the Common Securities.
(B) Assuming due authorization, execution and delivery by the Company and the Trustees, the Declaration is a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by the Permitted Exceptions.
(C) The Common Securities have been duly authorized by the Declaration and upon execution and delivery in accordance with the terms of the Declaration will be validly issued and represent undivided beneficial interests in the assets of the Trust.
(D) The Capital Securities have been duly authorized by the Declaration and, subject to the terms of the Declaration, when delivered to and paid for by the Underwriters pursuant to this Agreement, will be duly and validly issued, and (subject to the qualifications set forth in this paragraph) fully paid and non-assessable undivided beneficial interests in the assets of
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date Securities and the Option Shares on any Additional Closing DateSecurities, as the case may be, will shall be subject to the accuracy of the representations and warranties (in each case, subject to the qualifications, if any, described therein) on the part of the Company and the Operating Partnership contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to Applicable Time, the Closing Date (including the filing and each Date of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing DateDelivery, as the case may beif any, and pursuant to Section 3 hereof, to the accuracy of the statements of the Company’s officers Company made in any certificate furnished certificates pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No On the Closing Date, (i) the Registration Statement has become effective and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, Statement shall have been issued and no under the 1933 Act or proceedings for that purpose shall have been instituted therefor initiated or threatened by the SEC; Commission, and any request on the Final part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters, (ii) each preliminary prospectus and the Prospectus shall have been filed with the SEC pursuant to Commission in the manner and within the time period required by Rule 424(b) under without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the Securities Act not later than requirements of Rule 430B), and no order preventing or suspending the close use of business on any preliminary prospectus or the second business day following Prospectus shall have been issued by the execution and delivery Commission or the securities authority of this Agreement; and any jurisdiction, (iii) any material required to be filed by the Company pursuant to Rule 433(d) under of the Securities 1933 Act Regulations shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule 433, and (iv) there shall not have come to the attention of the Representatives any facts that would cause the Representatives to believe, after consultation with counsel, that the General Disclosure Package or the Prospectus, at the time it was, or was required to be, delivered or made available to purchasers of the Securities, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading.
(b) The Company shall have requested and caused Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date (or the applicable Date of Delivery, as the case may be) and addressed to the Representatives, to the matters attached as Exhibit A hereto. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware (to the extent limited to Delaware corporate laws) or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. Such opinion shall also cover any amendments or supplements thereto at the Closing Date (or the applicable Date of Delivery, as the case may be). The Underwriters acknowledge that the law firm of ▇▇▇▇▇▇▇ LLP, special Maryland counsel to the Company, is satisfactory for the purposes of this Section 6(b). In addition, Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC shall state that, although such counsel has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the General Disclosure Package or the Prospectus, no facts have come to such counsel’s attention that have caused such counsel to believe that (i) the Registration Statement or any amendment thereto, at the time the Registration Statement or any such amendment became effective, or as of the “new effective date” with respect to the Underwriters and the Securities pursuant to, and within the meaning of, Rule 430B(f)(2), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus, or any amendment or supplement thereto, as of their respective issue dates or at the Closing Date or the applicable Date of Delivery, as the case may be, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements, schedules and other financial information included or incorporated by reference therein or excluded therefrom, as to which such counsel need express no statement).
(c) The Representatives shall have received the favorable opinion, dated the Closing Date (or the applicable Date of Delivery, as the case may be), of ▇▇▇▇▇▇▇ LLP, special Maryland counsel of the Company, to the matters attached as Exhibit B hereto.
(d) The Representatives shall have received from Sidley Austin llp, counsel for the Underwriters, such opinion or opinions, dated the Closing Date (or the applicable Date of Delivery, as the case may be) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the disclosure in the Registration Statement, the General Disclosure Package and the Prospectus and other related matters as the Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. In rendering such opinion, such counsel may rely, as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of responsible officers of the Company and public officials. In addition, in rendering such opinion, such counsel may rely on and assume the accuracy of the opinion of ▇▇▇▇▇▇▇ LLP, special Maryland counsel to the Company, dated as of the Closing Date (or the applicable Date of Delivery, as the case may be), with respect to matters of Maryland law.
(e) The Underwriters shall have received a certificate of the president or an executive vice president of the Company, on behalf of the Company and as sole stockholder of Education Realty OP GP, Inc. (general partner of the Operating Partnership), and of the chief financial officer or chief accounting officer of the Company, on behalf of the Company and as sole stockholder of Education Realty OP GP, Inc. (general partner of the Operating Partnership), dated the Closing Date (or the applicable Date of Delivery, as the case may be), to the effect that the signers of such certificate have carefully examined the Registration Statement, the General Disclosure Package and the Prospectus and any amendments or supplements to the foregoing, as well as this Agreement, and that:
(i) the representations and warranties (in each case, subject to the qualifications, if any, described therein) of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date (or the applicable Date of Delivery, as the case may be) with the same effect as if made on the Closing Date (or such Date of Delivery, as the case may be) and the Company and the Operating Partnership have complied with all the agreements and satisfied all the conditions on their part to be performed or satisfied at or prior to the Closing Date (or such Date of Delivery, as the case may be);
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or, to the Company’s knowledge, are threatened by the Commission, and no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued by the Commission or the securities authority of any jurisdiction; and
(iii) since the date of the most recent financial statements included or incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse effect on the condition (financial or otherwise), business, earnings, properties, assets or prospects of the Company or the Operating Partnership and the Subsidiaries, taken as a whole, except as set forth in or contemplated in the Registration Statement, the General Disclosure Package and the Prospectus (excluding any documents incorporated or deemed to be incorporated by reference therein after the date hereof).
(f) At the date hereof, the Representatives shall have received a letter from Deloitte & Touche LLP dated such date, in form and substance reasonably satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus.
(g) On the Closing Date (or the applicable Date of Delivery, as the case may be), the Representatives shall have received a letter, dated the Closing Date (or such Date of Delivery, as the case may be), of Deloitte & Touche LLP, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section 6, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date (or such Date of Delivery, as the case may be).
(h) Subsequent to the date hereof or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there shall not have been (i) any change or decrease specified in the letter referred to in Section 6(f) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business, assets, prospects or properties of the Company or the Operating Partnership and the Subsidiaries taken as a whole, except as set forth in or contemplated in the Registration Statement, the General Disclosure Package and the Prospectus, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus, (iii) any downgrading in, or withdrawal of, the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 433 436(g) under the 1933 Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating), (iv) any suspension or material limitation by the Commission of trading in the Common Stock or trading in securities generally on the NYSE or any setting of minimum or maximum prices on such Exchange, or maximum ranges of prices have been required, by such Exchange or by such system or by order of the Commission, FINRA or any other governmental authority, (v) any banking moratorium declared either by federal or New York State authorities or (vi) any outbreak or significant escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis or any significant change in national or international political, financial or economic condition, the effect of which on financial markets is such as to make it, in the judgment of the Representatives, impractical or inadvisable to proceed with the offering or delivery of the Securities Actas contemplated by the General Disclosure Package and the Prospectus.
(i) On or prior to the Closing Date, the Representatives shall have received lock-up agreements substantially in the form of Exhibit C hereto (the “Lock-up Agreements”) from each of the executive officers and directors listed on Schedule III hereof.
(j) On the Closing Date, the Securities shall have been approved for listing on the NYSE, subject only to official notice of issuance.
(k) On the Closing Date (or the applicable Date of Delivery, as the case may be), counsel for the Underwriters shall have been furnished with such other documents as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company or the Operating Partnership in connection with the issuance and sale of the Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters.
(l) Prior to the Closing Date (or the applicable Date of Delivery, as the case may be), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. Any certificate or document signed by any officer or representative of the Company or the Operating Partnership and delivered to any Underwriter, or to counsel for the Underwriters, shall be deemed a representation and warranty by each of the Company and the Operating Partnership, as to matters set forth therein, to each Underwriter as to the statements made therein. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the Closing Date (or the applicable Date of Delivery, as the case may be) or otherwise. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives, this Agreement and all obligations of the Underwriters hereunder may be terminated at, or at any time prior to, the Closing Date or the applicable Date of Delivery, as the case may be, by the Representatives, and such termination shall be without liability of any party to any other party except as provided in Section 7 hereof and except that Sections 1 and 8 hereof shall survive any such termination and remain in full force and effect. Notice of such termination shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the offices of Sidley Austin llp, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on the Closing Date (or the applicable Date of Delivery, as the case may be).
Appears in 1 contract
Sources: Underwriting Agreement (Education Realty Trust, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate certificates furnished pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No For the period from and after effectiveness of this Agreement and prior to the Closing Date:
(i) no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under post-effective amendment to the Securities Act that would prevent its useRegistration Statement, shall have been issued be in effect and no proceedings for that such purpose shall have been instituted or threatened by the SEC; Commission, and the Final Prospectus Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to use of the automatic shelf registration statement form (unless the Shares are duly registered in the manner contemplated by Rule 401(g)(2) to the satisfaction of the Representative prior to the Closing Date);
(ii) the Company shall have been filed the preliminary prospectus and the Prospectus with the SEC pursuant to Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430B, and such post-effective 9 amendment shall have become effective (if not later than automatically effective under the close rules of business on the second business day following Commission);
(iii) the execution and delivery of this Agreement; Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act Act, shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule or, to the extent applicable, under Rule 164(b); and
(iv) the Financial Industry Regulatory Authority, Inc. ("FINRA") shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(b) The Company shall have furnished to the Representative the opinion of ▇▇▇▇▇ Mulliss & Wicker, PLLC, counsel for the Company, dated the Closing Date, to the effect of paragraphs (i) and (v) through (xiv) below, and the opinion of the General Counsel of the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) through (iv) below:
(i) the Company is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware, has the corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and the Prospectus, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the "Principal Subsidiary Bank") is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) each of the Company and the Principal Subsidiary Bank is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the Company or the Principal Subsidiary Bank, as the case may be, is required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock of the Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and (except as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except as otherwise set forth in the Disclosure Package and the Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors' qualifying shares) are owned, directly or indirectly, by Rule 433 the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens or encumbrances;
(iv) such counsel is without knowledge that there is (1) any pending or threatened action, suit or proceeding before or by any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement, the Disclosure Package or the Prospectus which is omitted or not adequately disclosed therein, or (2) any franchise, contract or other document of a character required to be described in the Registration Statement, the Disclosure Package or the 10 Prospectus, or to be filed as an exhibit to the Registration Statement, is not so described or filed as required;
(v) the Deposit Agreement, the Depositary Shares and the Preferred Stock conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Prospectus;
(vi) the Company has filed a preliminary listing application and all required supporting documents with respect to the Depositary Shares with the New York Stock Exchange, and such counsel has received no information stating that the Depositary Shares will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution;
(vii) the Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment to the Registration Statement, has been issued, and such counsel is without knowledge that any proceeding for that purpose has been instituted or threatened, or that the Company has received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form; and the Registration Statement, the Disclosure Package and the Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements under the Securities Act and the Exchange Act;
(viii) this Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by you, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in this Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and similar bank regulatory powers and to the application of principles of public policy;
(ix) no consent, approval, authorization or order of any court or governmental agency or body in the United States is necessary or required on behalf of the Company for the consummation of the transactions contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the blue sky, state securities or insurance or similar laws of the United States in connection with the purchase and distribution of the Depositary Shares by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(x) the shares of Preferred Stock, and any shares of Preferred Stock as to which the over-allotment option granted in Section 2 of this Agreement has been exercised, 11 have been duly authorized and, when paid for as contemplated herein, will be duly issued, fully paid and nonassessable;
(xi) the Depositary Shares, including any Depositary Shares subject to the over-allotment option granted in Section 2 of this Agreement, have been duly and validly authorized for issuance and sale, and, when the Initial Shares and any Option Shares are issued and delivered against payment therefor pursuant to this Agreement, the Depositary Shares will be duly and validly issued and fully paid and non-assessable; and all corporate action required to be taken for the authorization, issue and sale of the Depositary Shares has been validly and sufficiently taken and the Depositary Shares represent legal and valid interests in the Preferred Stock;
(xii) neither the issuance and sale of the Preferred Stock or the Depositary Shares, nor the consummation of any other of the transactions herein contemplated or contemplated by the Deposit Agreement nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach of, or constitute a default under (1) the certificate of incorporation or by-laws of the Company, each as amended to date, (2) the terms of any indenture or other material agreement or instrument known to such counsel and to which the Company or the Principal Subsidiary Bank is a party or bound, or (3) any order, law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Principal Subsidiary Bank;
(xiii) the Deposit Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the other parties thereto, constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and similar bank regulatory powers and to the application of principles of public policy; and
(xiv) such counsel is without knowledge of any rights to the registration of securities of the Company under the Registration Statement which have not been waived by the holders of such rights or which have not expired by reason of lapse of time following notification of the Company's intention to file the Registration Statement. In rendering such opinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no view as to portions of the Registration Statement, the Disclosure Package, or the Prospectus consisting of financial statements and other financial, accounting and statistical information and it has not independently verified, is not passing upon and assumes no responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package, or the Prospectus or any amendment or supplement thereto (other than as stated in (v) above), it has no reason to believe that such remaining portions of the Registration Statement or any amendment thereto as of the time it became effective, as of the Initial Sale Time or as of the date of such opinion, contained any untrue statement of a material fact or omitted to state any material fact required to be stated 12 therein or necessary to make the statements therein not misleading or that, subject to the foregoing with respect to financial statements and other financial, accounting and statistical information, the Disclosure Package, taken as a whole, as of the Initial Sale Time, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statement therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, as amended or supplemented, as of its date or as of the date of such opinion contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel also need not pass upon nor assume any responsibility for ascertaining whether or when any of the information contained in each Disclosure Package was conveyed to any purchaser of the Depositary Shares. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of North Carolina, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, upon the opinion of counsel to the Underwriters, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriters; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.
(c) The Representative shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Initial Shares, the Registration Statement, the Disclosure Package and the Prospectus and any other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representative a certificate of the Company, signed by any Senior Vice President or Treasurer or any other authorized officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and this Agreement and they are without knowledge that:
(i) the representations and warranties of the Company in this Agreement are not true and correct with the same force and effect as though expressly made at and as of the Closing Date and the Company has not performed or complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) any stop order suspending the effectiveness of the Registration Statement has been issued or any proceedings for that purpose have been instituted or threatened by the Commission; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus, there has been any material adverse change or any development involving a prospective material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not 13 arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(e) At the time this Agreement is executed, PricewaterhouseCoopers LLP shall have furnished to the Representative a letter or letters (which may refer to letters previously delivered to one or more of the Representative), dated as of the date of this Agreement, in form and substance satisfactory to the Representative, confirming that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) They are an independent registered public accounting firm with respect to the Company within the meaning under the Securities Act and the applicable rules and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (United States).
(ii) In their opinion, the consolidated financial statements of the Company and its subsidiaries audited by them and included or incorporated b
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein, herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date or any Additional Closing Date, as the case may be, and to the accuracy of the statements of the Company’s officers Company made in any certificate certificates furnished pursuant to the provisions of this Agreementhereof, to the performance and observance by the Company of all of its covenants and agreements herein contained obligations hereunder and to the following additional conditions:
(a) No For the period from and after effectiveness of this Agreement and prior to the Closing Date:
(i) no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under post-effective amendment to the Securities Act that would prevent its useRegistration Statement, shall have been issued be in effect and no proceedings for that such purpose shall have been instituted or threatened by the SEC; Commission, and the Final Prospectus Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to use of the automatic shelf registration statement form (unless the Shares are duly registered in the manner contemplated by Rule 401(g)(2) to the satisfaction of the Representative prior to the Closing Date);
(ii) the Company shall have been filed the preliminary prospectus and the Prospectus with the SEC pursuant to Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430B, and such post-effective amendment shall have become effective (if not later than automatically effective under the close rules of business on the second business day following Commission);
(iii) the execution and delivery of this Agreement; Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act Act, shall have been filed with the SEC Commission within the applicable time periods prescribed for such filings under such Rule or, to the extent applicable, under Rule 164(b); and
(iv) the Financial Industry Regulatory Authority, Inc. (the "FINRA") shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(b) The Company shall have furnished to the Representative the opinion of ▇▇▇▇▇ Mulliss & Wicker, PLLC, counsel for the Company, dated the Closing Date, to the effect of paragraphs (i) and (v) through (xiv) below, and the opinion of the General Counsel of the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) through (iv) below:
(i) the Company is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware, has the corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and the Prospectus, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the "Principal Subsidiary Bank") is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) each of the Company and the Principal Subsidiary Bank is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the Company or the Principal Subsidiary Bank, as the case may be, is required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock of the Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and (except as provided in 12 U.S.C. § 55, as amended) nonassessable, and, except as otherwise set forth in the Disclosure Package and the Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors' qualifying shares) are owned, directly or indirectly, by Rule 433 the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens or encumbrances;
(iv) such counsel is without knowledge that there is (1) any pending or threatened action, suit or proceeding before or by any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement, the Disclosure Package, or the Prospectus which is omitted or not adequately disclosed therein, or (2) any franchise, contract or other document of a character required to be described in the Registration Statement, the Disclosure Package, or the Prospectus, or to be filed as an exhibit to the Registration Statement, is not so described or filed as required;
(v) the Deposit Agreement, the Depositary Shares and the Preferred Stock conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Prospectus;
(vi) the Company has filed a preliminary listing application and all required supporting documents with respect to the Depositary Shares with the New York Stock Exchange, and such counsel has received no information stating that the Depositary Shares will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution;
(vii) the Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment to the Registration Statement, has been issued, and such counsel is without knowledge that any proceeding for that purpose has been instituted or threatened, or that the Company has received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form; and the Registration Statement, the Disclosure Package, and the Prospectus and each amendment thereof or supplement thereto (other than the financial statements and other financial and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements under the Securities Act and the Exchange Act;
(viii) this Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution, and delivery by you, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in this Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and similar bank regulatory powers and to the application of principles of public policy;
(ix) no consent, approval, authorization, or order of any court or governmental agency or body in the United States is necessary or required on behalf of the Company for the consummation of the transactions contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the blue sky, state securities or insurance or similar laws of the United States in connection with the purchase and distribution of the Depositary Shares by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(x) the shares of Preferred Stock, and any shares of Preferred Stock as to which the over-allotment option granted in Section 2 of this Agreement has been exercised, have been duly authorized and, when paid for as contemplated herein, will be duly issued, fully paid and nonassessable;
(xi) the Depositary Shares, including any Depositary Shares subject to the over-allotment option granted in Section 2 of this Agreement, have been duly and validly authorized for issuance and sale, and, when the Initial Shares and any Option Shares are issued and delivered against payment therefor pursuant to this Agreement, the Depositary Shares will be duly and validly issued and fully paid and non-assessable; and all corporate action required to be taken for the authorization, issue and sale of the Depositary Shares has been validly and sufficiently taken and the Depositary Shares represent legal and valid interests in the Preferred Stock;
(xii) neither the issuance and sale of the Preferred Stock or the Depositary Shares, nor the consummation of any other of the transactions herein contemplated or contemplated by the Deposit Agreement nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach of, or constitute a default under (1) the certificate of incorporation or by-laws of the Company, each as amended to date, (2) the terms of any indenture or other material agreement or instrument known to such counsel and to which the Company or the Principal Subsidiary Bank is a party or bound, or (3) any order, law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Principal Subsidiary Bank;
(xiii) the Deposit Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the other parties thereto, constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and similar bank regulatory powers and to the application of principles of public policy; and
(xiv) such counsel is without knowledge of any rights to the registration of securities of the Company under the Registration Statement which have not been waived by the holders of such rights or which have not expired by reason of lapse of time following notification of the Company's intention to file the Registration Statement. In rendering such opinion, but without opining in connection therewith, such counsel also shall state that, although it expresses no view as to portions of the Registration Statement, the Disclosure Package, or the Prospectus consisting of financial statements and other financial, accounting and statistical information and it has not independently verified, is not passing upon and assumes no responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package, or the Prospectus or any amendment or supplement thereto (other than as stated in (v) above), it has no reason to believe that such remaining portions of the Registration Statement or any amendment thereto as of the time it became effective, as of the Initial Sale Time or as of the date of such opinion, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that, subject to the foregoing with respect to financial statements and other financial, accounting and statistical information, the Disclosure Package, taken as a whole, as of the Initial Sale Time, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statement therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, as amended or supplemented, as of its date or as of the date of such opinion contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel also need not pass upon nor assume any responsibility for ascertaining whether or when any of the information contained in each Disclosure Package was conveyed to any purchaser of the Depositary Shares. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of North Carolina, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, upon the opinion of counsel to the Underwriters, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriters; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.
(c) The Representative shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Initial Shares, the Registration Statement, the Disclosure Package, and the Prospectus and any other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representative a certificate of the Company, signed by any Senior Vice President or Treasurer or any other authorized officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, and the Prospectus and this Agreement and they are without knowledge that:
(i) the representations and warranties of the Company in this Agreement are not true and correct with the same force and effect as though expressly made at and as of the Closing Date and the Company has not performed or complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) any stop order suspending the effectiveness of the Registration Statement has been issued or any proceedings for that purpose have been instituted or threatened by the Commission; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus, there has been any material adverse change or any development involving a prospective material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(e) At the time this Agreement is executed, PricewaterhouseCoopers LLP shall have furnished to the Representative a letter or letters (which may refer to letters previously delivered to one or more of the Representative), dated as of the date of this Agreement, in form and substance satisfactory to the Representative, confirming that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) They are an independent registered public accounting firm with respect to the Company within the meaning under the Securities Act and the applicable rules and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (United States).
(ii) In their opinion, the consolidated financial statements of the Company and its subsidiaries audited by them and included or incorporated by r
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Shares on the Closing Date and the Option Shares on any Additional Closing Date, as the case may be, will Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company and the Trust contained herein, herein as of the date hereof and on the Closing Date, to the accuracy of any material statements made in any certificates, opinions, affidavits, written statements or letters furnished to the Representative or to counsel to the Underwriters (“Underwriters’ Counsel”) pursuant to the provisions hereof, as to the performance by the Company and Trust of their respective obligations hereunder and to each of the date following additional conditions precedent:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filings pursuant to the Rules and Regulations and all filings (including, without limitation, the Term Sheet) required by Rule 433 or Rule 424(b) shall have been made within the periods required by such Rules, and no such filings will have been made without the consent of the Representative.
(b) No order suspending the effectiveness of any amendment to the Registration Statement filed after or preventing or suspending the date hereof use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or suspending the qualification of the Indenture, shall be in effect and prior no proceedings for such purpose shall be pending before or threatened by the Commission; no notice of objection of the Commission to use the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the Rules and Regulations shall have been received by the Company; and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the Closing Date reasonable satisfaction of the Representative.
(including c) Since the filing of any document incorporated by reference therein) and respective dates as of which information is given in the Registration Statement and the Final Prospectus, there shall not have been any change or decrease specified in the letter or letters referred to in paragraph (j) of this Section 7 which, in the judgment of the Representative, makes it impracticable or inadvisable to proceed with the offering and delivery of the Securities as contemplated by the Registration Statement and the Final Prospectus.
(d) The Company shall have furnished to the Representative the opinion of an Associate General Counsel or the Chief Legal Officer of the Company, addressed to the Underwriters and dated the Closing Date Date, to the effect that:
(i) The Company has been duly incorporated and is validly existing and in good standing as a corporation under the law of the jurisdiction of its incorporation and has full corporate power to conduct the businesses in which it is engaged as described in the Prospectus. Each of the Significant Subsidiaries that is incorporated under the laws of the United States or any Additional Closing DateState or territory thereof (a “Domestic Significant Subsidiary”) is a duly incorporated and validly existing corporation in good standing under the law of its jurisdiction of incorporation, and has full corporate power and authority to conduct its business as described in the Prospectus. Each of the Company and the Domestic Significant Subsidiaries is duly qualified to do business as a foreign corporation, is in good standing in its jurisdiction of incorporation and is duly registered as a broker-dealer, broker, dealer or investment advisor, as the case may be, in each jurisdiction in which the nature of the business conducted by it or in which the ownership or holding by lease of the properties owned or held by it requires such qualification or registration, except for such jurisdictions where the failure to so qualify, to be in good standing or to register would not have a Material Adverse Effect.
(ii) All the outstanding shares of capital stock of the Domestic Significant Subsidiaries have been duly authorized and are validly issued and outstanding and are fully paid and non-assessable and, except for directors’ qualifying shares, are owned by the Company or a subsidiary of the Company free and clear of any claims, liens, encumbrances and security interests.
(iii) Insofar as they purport to constitute summaries of the terms of the Securities, the Trust Preferred Securities, the Debentures, the Trust Guarantee, the Stock Purchase Contracts, the Depositary Shares, the Depositary Receipts, the Capital Stock, the Guarantee, the Preferred Stock and the Replacement Capital Covenant, the statements made in the Preliminary Prospectus and the Prospectus under the captions “▇▇▇▇▇▇ Brothers Holdings Trust VII,” “Description of the MCAPS,” “Description of the Stock Purchase Contracts,” “Certain Other Provisions of the Stock Purchase Contracts, the Stock Purchase Contract Agreement and the Collateral Agreement,” “Description of the Junior Subordinated Debentures,” “Description of the Trust Preferred Securities,” “Description of the Preferred Stock,” “Description of Depositary Shares,” “Description of Capital Stock,” “Description of the Guarantee,” “Relationship among the Trust Preferred Securities, the Junior Subordinated Debentures and the Guarantee” and “Certain Terms of the Replacement Capital Covenant” constitute accurate summaries of the terms of the Securities and Component Securities in all material respects.
(iv) The Indenture has been duly authorized, executed and delivered by the Company, the Indenture has been duly qualified under the Trust Indenture Act and the Indenture constitute a valid and legally binding instrument enforceable against the Company in accordance with each of its terms; and the Debentures have been duly authorized, executed and issued by the Company, and assuming due authentication by the Indenture Trustee and upon payment and delivery in accordance with this Agreement, will constitute valid and legally binding obligations of the Company entitled to the benefits of the Indenture; provided, however, that the foregoing is subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally from time to time in effect, to general equitable principles (whether considered in a proceeding in equity or at law) and to an implied covenant of good faith and fair dealing. In addition, such counsel need not express any opinion as to the accuracy severability provisions contained in Section 111 of the statements indenture.
(v) The Declaration of Trust has been duly authorized, executed and delivered by the Company, the Declaration of Trust have been duly qualified under the Trust Indenture Act, and assuming due authentication, and assuming due authorization, execution and delivery of the Declaration of Trust by the Regular Trustees, the Property Trustee and the Delaware Trustee the Indenture Trustee, the Declaration of Trust constitutes a valid and legally binding instrument enforceable against the Company in accordance with each of their terms; and the Trust Guarantee has been duly authorized, executed and delivered by the Company, the Trust Guarantee has been duly qualified under the Trust Indenture Act and, assuming due authorization, execution and delivery by the Trust Guarantee Trustee, will constitute a valid and legally binding obligation of the Company’s officers made ; provided, however, that the foregoing is subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally from time to time in any certificate furnished effect, to general equitable principles (whether considered in a proceeding in equity or at law) and to an implied covenant of good faith and fair dealing.
(vi) Each of the Stock Purchase Contract Agreement and the Collateral Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the other parties thereto, will constitute a valid and legally binding obligation of the Company; provided, however, that the foregoing is subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights from time to time in effect, to general equitable principles (whether considered in a proceeding at law or in equity) and to an implied covenant of good faith and fair dealing.
(vii) The Preferred Stock to be issued and sold by the Company pursuant to the Stock Purchase Contract Agreement has been duly and validly authorized for issuance by the Company under the Stock Purchase Contracts and, when issued and delivered in accordance with the provisions of the Stock Purchase Contract Agreement, will be validly issued, fully paid and non-assessable; there are no preemptive or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, the Preferred Stock pursuant to the Company’s charter or by-laws or any agreement or other instrument known to such counsel.
(viii) When the Deposit Agreement has been duly executed and delivered by the proper officers of the Company and assuming the due execution by the Depositary of the Deposit Agreement and the due execution by the Depositary and, if required by the Deposit Agreement, the Registrar of the Depositary Receipts in accordance with the terms of the Stock Purchase Contract Agreement and the Deposit Agreement and upon the deposit of the Preferred Stock with the Depositary pursuant to the Deposit Agreement, the Depositary Shares will represent legal and valid interests in the Preferred Stock and the Depositary Receipts will constitute valid evidence of such interests in the Shares and will be entitled to the benefits of the Deposit Agreement.
(ix) No consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated by this AgreementAgreement or the consummation by the Company and the Trust of the other transactions contemplated by the Operative Documents, except for (1) such consents, approvals, authorizations or orders as may be required under the Securities Act, the Exchange Act and the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities, including the Component Securities, by the Underwriters, and (2) the qualification of the Indenture, the Declaration of Trust and the Trust Guarantee under the Trust Indenture Act.
(x) Such counsel does not know of any contracts or other documents that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Rules and Regulations which have not been filed as exhibits to the Registration Statement or incorporated therein by reference as permitted by the Rules and Regulations.
(xi) Except as described in the Registration Statement, the most recent Preliminary Prospectus and the Prospectus, such counsel does not know of any litigation or any governmental proceeding pending or threatened against the Company or any of its subsidiaries that might reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect or that is required to be disclosed in the Registration Statement, the most recent Preliminary Prospectus and the Prospectus.
(xii) To the best of such counsel's knowledge, neither the Company nor any Domestic Significant Subsidiary is in violation of its corporate charter or by-laws, or in default under any material agreement, indenture or instrument known to such counsel, the effect of which violation or default would be material to the Company and its subsidiaries taken as a whole.
(xiii) The execution, delivery and performance of the Operative Documents by the Company and the Trust will not conflict with, or result in the creation or imposition of any material lien, charge or encumbrance upon any of the assets of the Company or any Domestic Significant Subsidiary pursuant to the terms of, or constitute a default under, any material agreement, indenture or instrument known to such counsel and to which the Company or any Domestic Significant Subsidiary is a party or is bound, or result in a violation of the corporate charter or by-laws of the Company or either of its Domestic Significant Subsidiaries or any order, rule or regulation known to such counsel of any court or governmental agency having jurisdiction over the Company, any Domestic Significant Subsidiary or any of their respective properties, the effect of which would be material to the Company and its subsidiaries taken as a whole.
(xiv) This Agreement has been duly authorized, executed and delivered by the Company; the execution, delivery and performance of this Agreement by the Company will not conflict with, or result in the creation or imposition of any lien, charge or encumbrance upon any of the assets of the Company or the Domestic Significant Subsidiaries pursuant to the terms of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel and to which the Company or the Domestic Significant Subsidiaries is a party or bound, or result in a violation of the corporate charter or by-laws of the Company or the Domestic Significant Subsidiary or any statute, rule, regulation or any order known to such counsel of any court or governmental agency having jurisdiction over the Company, the Domestic Significant Subsidiaries or any of their respective properties, the effect of which conflict, violation or default might reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(xv) The Registration Statement has become effective under the Securities Act, and, to the performance and observance by the Company best knowledge of all of its covenants and agreements herein contained and to the following additional conditions:
(a) No such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice under Rule 401(g)(2) under the Securities Act that would prevent its use, shall have Statement has been issued and no proceedings proceeding for that purpose shall have has been instituted or threatened by the SEC; Commission, and no notice of objection of the Final Prospectus shall have been filed with Commission to the SEC use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 424(b401(g)(2) under of the Rules and Regulations has been received by the Company.
(xvi) The Registration Statement, the Prospectus and each amendment thereof or supplement thereto (except that no opinion need be expressed as to the financial statements and notes thereto or the schedules or other financial or statistical data or the Form T-1 included or incorporated by reference therein) comply as to form in all material respects with the requirements of the Securities Act and the Rules and Regulations.
(xvii) To such counsel’s knowledge, the Trust is not later a party to or otherwise bound by any agreement other than those described in the close Prospectus.
(xviii) Neither the Company nor the Trust is subject to registration as an “investment company” under the Investment Company Act of business on 1940, as amended. Such opinion shall also contain a statement that although such counsel is not passing upon and does not assume any responsibility for the second business day following accuracy, completeness or fairness of the execution statements made or included or incorporated by reference in the Registration Statement and delivery the Prospectus (except as to those matters stated in paragraph (iii) of this Agreement; subsection (d)), and takes no responsibility therefor, based upon such counsel’s examination of the Registration Statement and the Prospectus, such counsel has no reason to believe that (A) the Registration Statement, as of the latest Effective Date, contained any untrue statement of a material fact or omitted to state any material fact required to be filed by stated therein or necessary in order to make the Company pursuant statements therein not misleading, (B) the Pricing Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to Rule 433(dstate any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading or (C) the Prospectus as of its date and as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under the Securities Act shall have been filed which they were made, not misleading (except, with the SEC within the applicable time periods prescribed for such filings by Rule 433 under the Securities Act.respect to (A),
Appears in 1 contract
Sources: Underwriting Agreement (Lehman Brothers Holdings Inc)