Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date, to the accuracy in all material respects of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditions: (a) The Final Prospectus, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus 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, or any notice that would prevent its use, as amended from time to time, shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have furnished to the Representatives: (i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the Company, dated the Closing Date, substantially to the effect that: (A) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; (B) insofar as the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions; (C) 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law); (D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act; (E) this Agreement has been duly authorized, executed and delivered by the Company; (F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and (G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to be applicable to the Company of any U.S. federal or California or Delaware court,
Appears in 4 contracts
Sources: Underwriting Agreement, Underwriting Agreement (Hewlett Packard Co), Underwriting Agreement (Hewlett Packard Co)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Notes shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Applicable Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) hereof and as of the Closing Date, to the accuracy in all material respects of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final ProspectusProspectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, or and any supplement theretoother material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed in with the manner and Commission within the applicable time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, Statement or any notice that would prevent its use, as amended from time to time, part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or threatenedthreatened 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 to your reasonable satisfaction.
(b) King & Spalding LLP, counsel for the Company, shall have furnished to the Underwriters an opinion or opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Representatives:
(i) Underwriters an opinion, dated the opinion Closing Date, of the General Counsel▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the Company, dated the Closing Date, substantially to the effect that:
(Ai) the The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of DelawareGeorgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and Final 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) The Company has been duly qualified as amended a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or supplementedleases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, except where all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such failure counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would not individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(Bvi) insofar as the statements contained in the Disclosure PackageThe execution and delivery of this Agreement, the statements contained in the Final Prospectus under the caption “Description issuance and sale of the Global Notes” , and the statements contained in the Base Prospectus under the caption “Description consummation of the Debt Securities” purport to describe specific provisions transactions and performance of the Securities obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the Indentureterms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such statements present in all material respects an accurate summary of such provisions;
(C) 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 obligation enforceable against counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies any violation of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms Restated Certificate of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration StatementIncorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted statute or are pending any order, rule or contemplated under regulation known to such counsel of any court or governmental agency or body having jurisdiction over the ActCompany, SunTrust Bank or any of their properties;
(Evii) this Agreement has been duly authorizedNo consent, executed and delivered by the Company;
(F) no approval, authorization, approval order, registration or other action by, and no notice to, consent of, order of, qualification of or filing with, with any U.S. federal court or California governmental agency or Delaware governmental authority or agency body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated hereinby this Agreement, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the blue sky state securities or Blue Sky laws of any jurisdiction in connection with the purchase and distribution of the Securities Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other approvals (specified in than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as have been obtainedto form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(Gx) none The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the issue Act or the Exchange Act, as applicable, and sale the rules and regulations of the SecuritiesCommission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the consummation Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an 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;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are 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 or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any 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, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the transactions herein contemplated Representatives makes it impracticable or inadvisable to proceed with the public offering or the fulfillment delivery of the Notes on the terms hereof will conflict with, result and in a breach of, the manner contemplated in the Pricing Disclosure Package or constitute a default under, the charter Prospectus.
(j) The Company shall have furnished or by-laws caused to be furnished to you at the Time of Delivery certificates of officers of the Company orand trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to be applicable to performance by the Company of any U.S. federal all of its respective obligations hereunder to be performed at or California or Delaware court,prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.
Appears in 4 contracts
Sources: Underwriting Agreement (Suntrust Banks Inc), Underwriting Agreement (Suntrust Banks Inc), Underwriting Agreement (Suntrust Banks Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date, to the accuracy in all material respects of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus 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, or any notice that would prevent its use, as amended from time to time, shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the Company, dated the Closing Date, substantially to the effect that:
(A) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(B) insofar as the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to be applicable to the Company of any U.S. federal or California or Delaware court,, governmental authority or agency having jurisdiction over the Company. “Material Agreements” means all agreements filed as exhibits to the Company’s most recent Annual Report on Form 10-K pursuant to clause (10) of paragraph (b) of Item 601 of Regulation S-K (but only such agreements that continue to be in effect). Such opinion shall also include a statement that such counsel has participated in conferences with officers and other representatives of the Company, counsel for the Company, the independent accountants of the Company and the Underwriters at which the Registration Statement, the Disclosure Package and the Final Prospectus and related matters were discussed and, although such counsel is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the Registration Statement, the Disclosure Package or the Final Prospectus or the statements contained therein and has made no independent check or verification thereof, on the basis of the foregoing, no facts have come to such counsel’s attention that has caused such counsel to believe that (i) the Registration Statement and the Final Prospectus (except the financial statements and the notes thereto and financial statement schedules and other information of an accounting, statistical or financial nature included therein, and the Statement of Eligibility (Form T-1) included as an exhibit to the Registration Statement, as to which such counsel need express no view) were not appropriately responsive in all material respects with requirements of the Act and the rules thereunder, (ii) the Registration Statement, as of the 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 that the Final Prospectus as of its date and on the Closing Date includes any untrue statement of a material fact or omits 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 (in each case except for the financial statements and the notes thereto and the financial statement schedules and other information of an accounting, statistical or financial nature included therein, and the Statement of Eligibility (Form T-1) included as an exhibit to the Registration Statement, as to which such counsel need express no view) and (iii) that the Disclosure Package, considered together, as of the Applicable Time, contained any untrue statement of material fact or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstance under which they were made, not misleading (except the financial statements and the notes thereto and financial statement schedules and other information of an accounting, statistical or financial nature included therein, as to which such counsel need express no view). Any of the statements described above may be omitted from the opinion of such counsel; provided, however, that in such event the Company shall also have furnished to the Representatives the corresponding opinion or statement of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, described in subsection 5(b)(ii) below.
Appears in 3 contracts
Sources: Underwriting Agreement (Hewlett Packard Co), Underwriting Agreement (Hewlett Packard Co), Underwriting Agreement (Hewlett Packard Co)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Execution Timethough made on, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date hereof and (including the filing of any document incorporated by reference thereinii) on, and as of though made on, the Closing Date, to the accuracy in all material respects of the statements of the Company Republic made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Final ProspectusPrior to the Closing Date, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus 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, or any notice that would prevent its use, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened.; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) of this Agreement; and any final term sheet contemplated by Section 4(a) hereof, and any other material required to be filed by the Republic 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;
(b) The Company shall have furnished to the Representatives:
(i) the opinion Head or Acting Head of the General Counsel, an Associate General Counsel or a Deputy General Counsel Legal Affairs Group of the Company, or an outside counsel for the Company, dated the Closing Date, substantially to the effect that:
(A) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(B) insofar as the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to be applicable to the Company of any U.S. federal or California or Delaware court,Dirección General de Crédito Público y
Appears in 3 contracts
Sources: Underwriting Agreement (Republic of Colombia), Underwriting Agreement (Republic of Colombia), Underwriting Agreement (Republic of Colombia)
Conditions to the Obligations of the Underwriters. The obligations obligation of each Underwriter hereunder to purchase its allocated share of the Underwriters to purchase the Securities Registered Certificates shall be subject to to: (i) the accuracy in all material respects of the representations and warranties on the part of the Company Depositor and ▇▇▇▇▇ Fargo Bank contained herein as of the Execution Timedate hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including Date, as of the filing of date the Prospectus or any document incorporated by reference therein) supplement thereto is filed with the Commission and as of the Closing Date, to ; (ii) the accuracy in all material respects of the statements of the Company Depositor made in any certificates delivered by the Company pursuant to the provisions hereof, to ; (iii) the performance in all material respects by the Company Depositor of its obligations hereunder hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller (and, in the case of GCMC, GSC II) of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional conditions:
(a) The Final Prospectus, or any supplement thereto, Registration Statement shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required by Rule 433; become effective and no stop order suspending the effectiveness of the Registration Statement, or any notice that would prevent its use, as amended from time to time, shall have been issued and not withdrawn and no proceedings for that purpose shall have been instituted or, to the Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of Sale Information shall have been filed or threatenedtransmitted for filing with the Commission in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the 1933 Act, as applicable.
(b) The Company You shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside received from counsel for the CompanyUnderwriters, a favorable opinion, dated the Closing Date, substantially as to such matters regarding the Registered Certificates as you may reasonably request.
(c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that:: (i) the representations and warranties of the Depositor in this Agreement are true and correct in all material respects at and as of the Closing Date with the same effect as if made on the Closing Date; and (ii) the Depositor has in all material respects complied with all the agreements and satisfied all the conditions on its part that are required hereby to be performed or satisfied at or prior to the Closing Date; and ▇▇▇▇▇ Fargo Bank shall have delivered to you a certificate of ▇▇▇▇▇ Fargo Bank, signed by an authorized officer of ▇▇▇▇▇ Fargo Bank and dated the Closing Date, to the effect that: (i) the representations and warranties of ▇▇▇▇▇ Fargo Bank in this Agreement are true and correct in all material respects at and as of the Closing Date with the same effect as if made on the Closing Date; and (ii) ▇▇▇▇▇ Fargo Bank has, in all material respects, complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date.
(Ad) You shall have received (i) with respect to ▇▇▇▇▇ Fargo Bank, a certificate of the Company has been duly incorporated Office of the Comptroller of the Currency and (ii) with respect to the Depositor a good standing certificate from the Secretary of State of the State of North Carolina, each dated not earlier than 30 days prior to the Closing Date.
(e) (i) You shall have received from the Secretary or an Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, signed this Agreement, or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein, was at the respective times of such signing and delivery, and is validly existing as a corporation in of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures; and (y) no event (including, without limitation, any act or omission on the part of the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of DelawareNorth Carolina. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company Closing Date, and its subsidiaries, taken as a whole;
(B) insofar as the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description resolutions of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) the Indenture has been duly authorized, executed Depositor and delivered by the Company, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws any required shareholder consent relating to or affecting the rights and remedies of creditors generally from time to time transactions contemplated in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law)this Agreement; and (ii) you shall have received from the Securities have been duly authorized andSecretary or an Assistant Secretary of ▇▇▇▇▇ Fargo Bank, when executed and authenticated in accordance with his or her individual capacity, a certificate, dated the provisions of Closing Date, to the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms effect that: (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(Dx) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433each individual who, as the case may be; to the best knowledge an officer or representative of such counsel▇▇▇▇▇ Fargo Bank, no stop order suspending the effectiveness of the Registration Statement, as amended, signed this Agreement or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted other document or are pending certificate delivered on or contemplated under before the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of Closing Date in connection with the transactions contemplated herein, except was at the respective times of such signing and delivery, and is as have been obtained of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures; and (y) no event (including, without limitation, any act or omission on the part of ▇▇▇▇▇ Fargo Bank) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of ▇▇▇▇▇ Fargo Bank under the Actlaws of the United States of America. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of ▇▇▇▇▇ Fargo Bank) of the articles of association and by-laws of ▇▇▇▇▇ Fargo Bank, as in effect on the Closing Date, and of the resolutions of ▇▇▇▇▇ Fargo Bank and any required shareholder consent relating to the transactions contemplated in this Agreement.
(f) You shall have received from in-house counsel of the Depositor or special counsel to the Depositor, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters.
(g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you.
(h) You shall have received from in-house counsel to ▇▇▇▇▇ Fargo Bank, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters.
(i) You shall have received from the Accounting Firms copies of the Accountants’ Due Diligence Reports and from Deloitte letters satisfactory in form and substance to you and counsel for the Underwriters, to the effect that Deloitte has performed certain specified procedures as a result of which it has determined that the information of an accounting, financial or statistical nature set forth (A) in the Prospectus under the captions “Summary of Terms,” “Description of the Mortgage Pool” and “Yield and Maturity Considerations”, (B) on Annexes A-1, A-2 and A-3 to each of the Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the respective compilations of information and data regarding the Mortgage Loans prepared by or on behalf of the Mortgage Loan Sellers and provided to Deloitte (such compilations, the Exchange Act “Master Tapes”), unless non-material deviations are otherwise noted in such letter.
(j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings.
(k) You shall have received from the Secretary or an Assistant Secretary of the Trustee, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The Trustee” in the Prospectus is true and correct in all material respects.
(l) You shall have received from the Secretary or an Assistant Secretary of the Certificate Administrator, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The Certificate Administrator” in the Prospectus is true and correct in all material respects.
(m) You shall have received from the Secretary or an Assistant Secretary of the Master Servicer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicer” in the Prospectus is true and correct in all material respects.
(n) You shall have received from the Secretary or an Assistant Secretary of the Special Servicer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer” in the Prospectus is true and correct in all material respects.
(o) You shall have received from the Secretary or an Assistant Secretary of the Operating Advisor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects.
(p) You shall have received from the Secretary or an Assistant Secretary of the Asset Representations Reviewer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus, is true and correct in all material respects.
(q) You shall have received from counsel for each Mortgage Loan Seller, the Retaining Sponsor, the Master Servicer, the Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Trust Indenture Act Certificate Administrator a favorable opinion, dated the Closing Date, in form and such as may be required under substance satisfactory to the blue sky laws Underwriters and counsel for the Underwriters.
(r) You shall have received copies of any jurisdiction opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters.
(s) All proceedings in connection with the purchase transactions contemplated by this Agreement and distribution all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested.
(t) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the 1934 Act to the satisfaction of the Securities and such other approvals (Underwriters. If any of the conditions specified in such opinion) as this Section 6 shall not have been obtained; and
(G) none fulfilled in all material respects when and as provided in this Agreement, if the Depositor is in breach of any covenants or agreements contained herein or if any of the issue opinions and sale certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the SecuritiesUnderwriters hereunder may be canceled at, or at any time prior to, the consummation Closing Date by you. Notice of any other of such cancellation shall be given to the transactions herein contemplated or the fulfillment of the terms hereof will conflict with, result Depositor in a breach ofwriting, or constitute a default under, the charter or by-laws of the Company or, to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to be applicable to the Company of any U.S. federal or California or Delaware court,by telephone confirmed in writing.
Appears in 2 contracts
Sources: Underwriting Agreement (Wells Fargo Commercial Mortgage Trust 2026-5c8), Underwriting Agreement (Wells Fargo Commercial Mortgage Trust 2026-5c8)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities hereunder shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) hereof and as of the Closing each Delivery Date, to the accuracy in all of any material respects of the statements of the Company made in any certificates delivered by certificates, opinions, affidavits, written statements or letters furnished to the Company Representative(s) or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP (“Underwriters’ Counsel”) pursuant to the provisions hereofthis Section 6, to the performance in all material respects by the Company of its respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed with the Commission pursuant to Rule 424 not later than the Commission’s close of business, on the second business day following the execution and delivery of this Agreement or such later date and time as shall be consented to in writing by the Representatives.
(b) No order suspending the effectiveness of the Registration Statement, as amended from time to time, shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission and any requests for additional information on the part of the Commission (to be included in the manner Registration Statement or the Final Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative(s).
(c) Since the respective dates as of which information is given in the Registration Statement and within the time period Final Prospectus, there shall not have been any change or decrease specified in the letter referred to in paragraph (g) of this Section 6 which, in the judgment of the Representative(s), makes it impracticable or inadvisable to proceed with the offering and delivery of the Stock as contemplated by the Registration Statement and the Final Prospectus.
(d) The Company shall have furnished to the Representative(s) the opinion of the Chief Legal Officer, General Counsel or an Associate General Counsel for the Company, dated the day of 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 and authority to conduct its business as described in the Final Prospectus.
(ii) The Stock conforms in all material respects to the descriptions thereof contained in the Final Prospectus.
(iii) The Company has an authorized capitalization as set forth in the Final Prospectus, and all of the issued shares of capital stock of the Company (including the shares of Stock 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;
(iv) There are no preemptive or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any shares of the Stock pursuant to the Company’s charter or by-laws or any agreement or other instrument known to such counsel;
(v) 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, 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 and Blue Sky laws of any jurisdiction in connection with the purchase and distribution of the Stock by Rule 433the Underwriters.
(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 which have not been filed as exhibits to the Registration Statement or incorporated therein by reference as permitted by the Rules.
(vii) To such counsel’s knowledge, neither the Company nor any Significant Subsidiary that is organized under the laws of the United States or any State or territory thereof (a “Domestic Significant Subsidiary”) is in violation of its organizational documents, or in default under any material agreement, indenture or instrument known to such counsel, the effect of which violation or default would be material to the Company and its subsidiaries taken as a whole.
(viii) 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 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 indenture, mortgage, deed of trust, loan agreement, or other agreement or instrument known to such counsel and to which the Company or any of its Significant Subsidiaries is a party or is bound, or result in a violation of the corporate charter or by-laws of the Company or any Domestic Significant Subsidiary or any statute, rule, regulation or any 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.
(ix) The Registration Statement has become effective under the Securities Act, and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, or any notice that would prevent its use, as amended from time to time, shall have Statement has been issued and no proceedings proceeding for that purpose shall have has been instituted or threatenedthreatened by the Commission.
(bx) The Company shall have furnished Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto (except that no opinion need be expressed as to the Representatives:financial statements or other financial or statistical data or the Form T-1 of the trustee under the Trust Indenture Act included or incorporated by reference therein) comply as to form in all material respects with the requirements of the Securities Act and the Rules.
(ixi) If the opinion Stock is to be listed on the NYSE, authorization therefor has been given, subject to official notice of the General Counsel, an Associate General Counsel or a Deputy General Counsel issuance and evidence of the Companysatisfactory distribution, or an outside counsel for the Company, dated the Closing Date, substantially Company has filed a preliminary listing application and all required supporting documents with respect to the effect that:Stock with the NYSE, and such counsel has no reason to believe that the Stock will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution.
(Axii) the Company Each Domestic Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws law of the State jurisdiction of Delaware, with full its incorporation and each such subsidiary has the corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on Prospectus. Each of the Company and its subsidiaries, taken the Domestic Significant Subsidiaries is duly qualified to do business as a whole;
(B) insofar foreign corporation, is in good standing and is duly registered as the statements contained in the Disclosure Packagea broker-dealer, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities broker, dealer or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433investment advisor, as the case may be; , in each jurisdiction in which the nature of the business conducted by it or in which the ownership or holding by lease of the properties owned or held by it require such qualification or registration and where the failure to so qualify or register would have a Material Adverse Effect.
(xiii) All the outstanding shares of capital stock of each Domestic Significant Subsidiary have been duly and validly authorized and issued and are fully paid and non-assessable and, except for directors’ qualifying shares, are owned by the Company or a subsidiary of the Company free and clear of any claims, liens, encumbrances and security interests.
(xiv) Such counsel does not know of any legal or governmental proceeding pending or threatened against the Company or any of its subsidiaries which would affect the subject matter of this Agreement or is required to be described in the Final Prospectus which is not described and correctly summarized therein. 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 Final Prospectus (except as to those matters stated in paragraph (ii) of such opinion), such counsel has no reason to believe that (i) the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or (ii) the Final Prospectus contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that no statement need be made as to the financial statements or other financial or statistical data or the Forms 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 such counsel deems proper, upon certificates or affidavits of officers of the Company and public officials.
(e) 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 Stock, the Registration Statement, the Final Prospectus 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.
(f) 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 Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus and this Agreement, and that, to the best of their knowledge after due inquiry:
(i) The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of such counselDelivery Date with the same effect as if made on such Delivery Date, no 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, or any notice that would prevent its use Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;threatened.
(Eiii) this Agreement (x) The Registration Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (y) the Final Prospectus does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (z) since the effective date of the Registration Statement there has not occurred any event required to be set forth in an amended or supplemented prospectus which has not been duly authorized, executed and delivered by the Company;so set forth.
(Fg) no authorizationAt each Delivery Date, approval or other action bya 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 and in form and substance satisfactory to the Representative(s), stating in effect that:
(i) In their opinion, the consolidated financial statements of the Company and its subsidiaries, and no notice tothe supporting schedules, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for included in the consummation Registration Statement and the Final Prospectus and audited by them comply as to form in all material respects with the applicable accounting requirements of the transactions contemplated herein, except such as have been obtained under the Act, Securities Act and the Exchange Act and the Trust Indenture Act related published rules and regulations thereunder.
(ii) On the basis of a reading of the unaudited consolidated financial statements of the Company and its subsidiaries, if any, included in the Registration Statement and the Final Prospectus and of the latest unaudited consolidated financial statements made available by the Company and ▇▇▇▇▇▇ Brothers Inc., carrying out certain specified procedures (but not an audit in accordance with generally accepted auditing standards), a reading of the minutes of the meetings of the directors of the Company and ▇▇▇▇▇▇ Brothers Inc., and inquiries of certain officials of the Company and its subsidiaries, who have responsibility for financial and accounting matters of the Company and its subsidiaries, as to transactions and events subsequent to the date of the most recent audited consolidated financial statements included in the Registration Statement and the Final Prospectus, nothing came to their attention that caused them to believe that:
(A) any material modifications should be made to the unaudited consolidated financial statements of the Company and its subsidiaries, if any, included in the Registration Statement and the Final Prospectus, for them to be in conformity with generally accepted accounting principles; and such financial statements do not comply as may be required under the blue sky laws of any jurisdiction to form in connection all material respects with the purchase and distribution applicable accounting requirements of the Securities Act and such other approvals the published instructions, rules and regulations thereunder.
(specified B) the unaudited capsule information of the Company and its subsidiaries, if any, included in such opinionthe Registration Statement and the Final Prospectus does not agree with the amounts set forth in the unaudited consolidated financial statements of the Company from which it was derived or was not determined on a basis substantially consistent with that of the corresponding financial information in the latest audited financial statements of the Company included in the Registration Statement and the Final Prospectus.
(C) (I) as of the latest date as of which the Company and its subsidiaries have been obtainedmonthly financial statements, as compared to amounts shown in the most recent consolidated financial statements of the Company and its subsidiaries included in the Registration Statement and the Final Prospectus, there was any change in the capital stock (other than issuances of common stock upon the exercise of options or employee awards and the repurchase of common stock in the ordinary course of business to provide for common stock to be issued pursuant to the exercise of options or employee awards), or increase in long-term indebtedness, or decrease in net assets or stockholders’ equity of the Company and its subsidiaries and (II) from the date of the most recent consolidated financial statements of the Company and its subsidiaries included in the Registration Statement and Final Prospectus to the latest date as of which the Company and its subsidiaries have monthly financial statements, there was any consolidated loss from operations before taxes or consolidated net loss of the Company and its subsidiaries; and
(GD) none as of a specified date no more than three business days prior to the date of the issue and sale letter, as compared to the date of the Securities, the consummation of any other of the transactions herein contemplated or the fulfillment of the terms hereof will conflict with, result in a breach of, or constitute a default under, the charter or by-laws most recent consolidated financial statements of the Company orand its subsidiaries included in the Registration Statement and Final Prospectus, there was any change in capital stock (other than issuances of common stock upon the exercise of options or employee awards and the repurchase of common stock in the ordinary course of business to such counsel’s knowledge, provide for common stock to be issued pursuant to the terms exercise of any Material Agreementsoptions or employee awards), or any material decree increase in long-term indebtedness, or regulation known to such counsel to be applicable to decrease in net assets or stockholders’ equity of the Company of any U.S. federal or California or Delaware court,and its subsidiaries; except in all instances and chang
Appears in 2 contracts
Sources: Underwriting Agreement (Lehman Brothers Holdings Inc), Underwriting Agreement (Lehman Brothers Holdings Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities hereunder shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) hereof and as of the Closing Date, to the accuracy in all of any material respects of the statements of the Company made in any certificates delivered by certificates, opinions, affidavits, written statements or letters furnished to the Company Representative(s) or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP (“Underwriters’ Counsel”) pursuant to the provisions hereofthis Section 6, to the performance in all material respects by the Company of its respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed with the Commission pursuant to Rule 424 not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement or such later date and time as shall be consented to in writing by the manner and within the time period required by Rule 433; and no stop Representative(s).
(b) No order suspending the effectiveness of the Registration Statement, or any notice that would prevent its use, as amended from time to time, or suspending the qualification of the Indenture, shall have been issued be in effect and no proceedings for that such purpose shall be pending before or threatened by the Commission and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Final Prospectus or otherwise) shall have been instituted or threatenedcomplied with to the reasonable satisfaction of the Representative(s).
(bc) Since the respective dates as of which information is given in the Registration Statement and the Final Prospectus, there shall not have been any change or decrease specified in the letter referred to in paragraph (g) of this Section 6 which, in the judgment of the Representative(s), makes it impracticable or inadvisable to proceed with the offering and delivery of the Securities as contemplated by the Registration Statement and the Final Prospectus.
(d) The Company shall have furnished to the Representatives:
(iRepresentative(s) the opinion of the Chief Legal Officer, General Counsel, Counsel or an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the Company, dated the day of the Closing Date, substantially to the effect that:
(Ai) the The Company has been duly incorporated and is validly existing and in good standing as a corporation in good standing under the laws law of the State jurisdiction of Delaware, with its incorporation and has full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;Prospectus.
(Bii) insofar as The Securities and the statements contained Indenture conform in all material respects to the Disclosure Package, the statements descriptions thereof contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;Prospectus.
(Ciii) the The Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act, Act and constitutes a legal, valid and legally binding obligation instrument enforceable against the Company in accordance with its terms (terms; and the Securities have been duly authorized, executed and issued by the Company, and assuming due authentication by the Trustee and upon payment and delivery in accordance with the Underwriting Agreement, will constitute valid and legally binding obligations of the Company entitled to the benefits of the Indenture; provided however, that the foregoing is subject to applicable the effects of bankruptcy, insolvency, fraudulent transferconveyance, reorganization, arrangement, moratorium and other similar laws relating to or affecting the creditors’ rights and remedies of creditors generally from time to time in effectgenerally, and subject to general equitable principles of equity, regardless of (whether such enforceability is considered in a proceeding in equity or at law); ) and to an implied covenant of good faith and fair dealing.
(iv) 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, 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 and Blue Sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters, and (2) the qualification of the Indenture under the Trust Indenture Act, which has been obtained.
(v) Such counsel does not know of any contracts or other documents that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Rules which have not been filed as exhibits to the Registration Statement or incorporated therein by reference as permitted by the Rules.
(vi) To such counsel’s knowledge, neither the Company nor any Significant Subsidiary that is organized under the laws of the United States or any State or territory thereof (a “Domestic Significant Subsidiary”) is in violation of its organizational documents, or in default under any material agreement, indenture or instrument known to such counsel, the effect of which violation or default would be material to the Company and its subsidiaries taken as a whole.
(vii) This Agreement and, to the extent applicable, the Delayed Delivery Contracts have been duly authorized andauthorized, when executed and authenticated delivered by the Company; the execution, delivery and performance of this Agreement and any Delayed Delivery Contracts by the Company will not conflict with, or result in accordance with the provisions creation or imposition of any material lien, charge or encumbrance upon any of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations assets of the Company enforceable against or any Domestic Significant Subsidiary 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 in accordance with their terms (subject to applicable bankruptcyor any Domestic Significant Subsidiary is a party or is bound, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered result in a proceeding in equity violation of the corporate charter or at law);by-laws of the Company or any 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, 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.
(Dviii) the The Registration Statement and any amendments thereto have has become effective under the Securities Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectusand, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; 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.
(ix) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto (except that no opinion need be expressed as to the financial statements or other financial or statistical data or the Form T-1 of the Trustee under the Trust Indenture Act included or incorporated by reference therein) comply as to form in all material respects with the requirements of the Securities Act and the Rules.
(x) If the Securities are to be listed on the NYSE, authorization therefor has been given, subject to official notice of issuance and evidence of satisfactory distribution, or the Company has filed a preliminary listing application and all required supporting documents with respect to the Securities with the NYSE, and such counsel has no reason to believe that the Securities will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution.
(xi) Each Domestic Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the law of the jurisdiction of its incorporation and each such subsidiary has the corporate power and authority to conduct its business as described in the Final Prospectus. Each of the Company and the Domestic Significant Subsidiaries is duly qualified to do business as a foreign corporation, is in good standing and is duly registered as a broker-dealer, broker, dealer or investment advisor, as the case may be, in each jurisdiction in which the nature of the business conducted by it or in which the ownership or holding by lease of the properties owned or held by it require such qualification or registration and where the failure to so qualify or register would have a Material Adverse Effect.
(xii) All the outstanding shares of capital stock of each Domestic Significant Subsidiary have been duly and validly authorized and issued and are fully paid and non-assessable and, except for directors’ qualifying shares, are owned by the Company or a subsidiary of the Company free and clear of any claims, liens, encumbrances and security interests.
(xiii) Such counsel does not know of any legal or governmental proceeding pending or threatened against the Company or any of its subsidiaries which would affect the subject matter of this Agreement or is required to be described in the Final Prospectus which is not described and correctly summarized therein. 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 Final Prospectus (except as to those matters stated in paragraph (ii) of such opinion), such counsel has no reason to believe that (i) the Registration Statement, as amendedof its effective date, contained any untrue statement of a material fact or omitted to state any notice material fact required to be stated therein or necessary in order to make the statements therein not misleading or (ii) the Final Prospectus contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that would prevent no statement need be made as to the financial statements or other financial or statistical data or the Form T-1 included or incorporated by reference therein). In rendering such 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 deems proper, upon certificates or affidavits of officers of the Company, the Trustee and public officials. Such counsel may rely on a certificate of the Trustee with respect to the execution of the Securities by the Company and the authentication thereof by the Trustee.
(e) The Representative(s) shall have received from Underwriters’ Counsel such opinion or opinions, dated the day of the Closing Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus and other related matters as the Representative(s) may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representative(s) a certificate of its use Chief Executive Officer, its President, Chief Operating Officer, Chief Administrative Officer, any Executive Vice President, Senior Vice President or Vice President, 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 effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus and this Agreement, and that, to the best of their knowledge after due inquiry:
(i) The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;threatened.
(Eiii) this Agreement (x) The Registration Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (y) the Final Prospectus does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (z) since the effective date of the Registration Statement there has not occurred any event required to be set forth in an amended or supplemented prospectus which has not been duly authorized, executed and delivered by the Company;so set forth.
(Fg) no authorizationAt the Closing Date, approval or other action bya nationally recognized independent registered public accounting firm shall have furnished to the Representative(s) a letter, dated the day of the Closing Date, confirming that they are independent auditors with respect to the Company within the meaning of the Securities Act and in form and substance satisfactory to the Representative(s), stating in effect that:
(i) In their opinion, the consolidated financial statements of the Company and its subsidiaries, and no notice tothe supporting schedules, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for included in the consummation Registration Statement and the Final Prospectus and audited by them comply as to form in all material respects with the applicable accounting requirements of the transactions contemplated herein, except such as have been obtained under the Act, Securities Act and the Exchange Act and the Trust Indenture Act related published rules and regulations thereunder.
(ii) On the basis of a reading of the unaudited consolidated financial statements of the Company and its subsidiaries, if any, included in the Registration Statement and the Final Prospectus and of the latest unaudited consolidated financial statements made available by the Company and ▇▇▇▇▇▇ Brothers Inc., carrying out certain specified procedures (but not an audit in accordance with generally accepted auditing standards), a reading of the minutes of the meetings of the directors of the Company and ▇▇▇▇▇▇ Brothers Inc., and inquiries of certain officials of the Company and its subsidiaries, who have responsibility for financial and accounting matters of the Company and its subsidiaries, as to transactions and events subsequent to the date of the most recent audited consolidated financial statements included in the Registration Statement and the Final Prospectus, nothing came to their attention that caused them to believe that:
(A) any material modifications should be made to the unaudited consolidated financial statements of the Company and its subsidiaries, if any, included in the Registration Statement and the Final Prospectus, for them to be in conformity with generally accepted accounting principles; and such financial statements do not comply as may be required under the blue sky laws of any jurisdiction to form in connection all material respects with the purchase and distribution applicable accounting requirements of the Securities Act and such other approvals (specified in such opinion) as have been obtained; andthe published instructions, rules and regulations thereunder.
(GB) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or the fulfillment of the terms hereof will conflict with, result in a breach of, or constitute a default under, the charter or by-laws unaudited capsule information of the Company orand its subsidiaries, if any, included in the Registration Statement and the Final Prospectus does not agree with the amounts set forth in the unaudited consolidated financial statements of the Company from which it was derived or was not determined on a basis substantially consistent with that of the corresponding financial information in the latest audited financial statements of the Company included in the Registration Statement and the Final Prospectus.
(C) (I) as of the latest date as of which the Company and its subsidiaries have monthly financial statements, as compared to such counsel’s knowledgeamounts shown in the most recent consolidated financial statements of the Company and its subsidiaries included in the Registration Statement and the Final Prospectus, there was any change in the terms capital stock (other than issuances of any Material Agreementscommon stock upon the exercise of options or employee awards and the repurchase of common stock in the ordinary course of business to provide for common stock to be issued pursuant to the exercise of options or employee awards), or any material decree increase in long-term indebtedness, or regulation known to such counsel to be applicable decrease in net assets or stockholders’ equity of the Company and its subsidiaries and (II) from the date of the most recent consolidated financial statements of the Company and its subsidiaries included in the Registration Statement and Final Prospectus to the latest date as of which the Company of and its subsidiaries have monthly financial statements, there was any U.S. federal consolidated loss from operations before taxes or California or Delaware court,consolidated net loss
Appears in 2 contracts
Sources: Underwriting Agreement (Lehman Brothers Holdings Inc), Underwriting Agreement (Lehman Brothers Holdings Inc)
Conditions to the Obligations of the Underwriters. The respective obligations of the several Underwriters to purchase the Securities under this Agreement shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained set forth herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the First Closing Date (including the filing of any document incorporated by reference therein) Date, and if applicable, as of the Second Closing Date, as the case may be, to the accuracy in all material respects of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereofCompany's directors and officers, to the performance in all material respects by the Company of its obligations hereunder hereunder, and to the following additional conditions, except to the extent expressly waived in writing by the Representatives:
(a) The Final Prospectus, or any supplement thereto, Registration Statement and all post-effective amendments thereto shall have been filed declared effective by the Commission not later than 5:30 p.m. eastern time, on the date of this Agreement, or such later time as shall have been consented to by the Representatives, but in any event not later than 5:30 p.m., eastern time, on the manner and within third full business day following the date hereof; if the Company omitted information from the Registration Statement at the time period required it became effective in reliance on Rule 430A under Rule 424(b)the Act, and any Issuer Free Writing the Prospectus shall have been filed with the Commission in compliance with Rule 424(b) and Rule 430A under the manner and within the time period required by Rule 433Act; and no stop order suspending the effectiveness of the Registration Statement, Statement or any notice that would prevent its use, as amended from time to time, amendment or supplement thereto shall have been issued and issued; no proceedings proceeding for that purpose the issuance of such an order shall have been instituted initiated or threatenedshall be pending or, to the knowledge of the Company or the Representatives, threatened or contemplated by the Commission; and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been disclosed to the Representatives and complied with to the Representatives' satisfaction.
(b) The Company Shares shall have furnished been qualified or registered for sale, or subject to an available exemption from such qualification or registration, under the RepresentativesBlue Sky Laws of such jurisdictions as shall have been reasonably specified by the Representatives and the offering shall have been cleared by the NASD.
(c) Since the dates as of which information is given in the Registration Statement:
(i) There shall not have been any adverse change, or any development involving a prospective material adverse change, in the ability of the Company or any Subsidiary to conduct their respective businesses (whether by reason of any court, legislative, other governmental action, order, decree, or otherwise), or in the general affairs, condition (financial and otherwise) business, prospects, properties, management, financial position or earnings, results of operations, or net worth of the Company or any Subsidiary, whether or not arising from transactions in the ordinary course of business; and
(ii) Neither the Company nor any Subsidiary shall have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident, or other calamity (whether or not insured) or from any court or governmental action, order, or decree, the effect of which on the Company or any Subsidiary, in any such case described in clause (c)(i) or (ii) above, is in the reasonable opinion of the General Counsel, an Associate General Counsel Representatives so material and adverse as to make it impracticable or a Deputy General Counsel inadvisable to proceed with the public offering or the delivery of the CompanyShares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(d) There shall have been furnished to the Representatives, or an outside as the representatives of the Underwriters, on each Closing Date, except as otherwise expressly provided below:
(i) An opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Weary & ▇▇▇▇▇▇▇▇ ▇.▇. Kansas City, Missouri, counsel for the Company, in form reasonably satisfactory to the Representatives and counsel for the Underwriters, addressed to the Representatives as representatives of the Underwriters and dated as of the First Closing Date or the Second Closing Date, substantially as the case may be, to the effect that:
(A1) the The Company has and each Subsidiary have been duly incorporated and is are validly existing as a corporation corporations in good standing under the laws of the State jurisdiction of Delawareorganization, with full corporate power and authority to own its own, lease, and operate their respective properties and conduct its business their respective businesses as described in the Disclosure Package Registration Statement; the Company and Final Prospectus each Subsidiary are duly qualified to do business as amended foreign corporations under the corporation laws of, and are in good standing as such in, each jurisdiction in which the Company or supplementedsuch Subsidiary, as the case may be, owns or leases properties, has an office, or in which business is conducted and such qualification is required, except where such the failure to so qualify would not have a material adverse effect on Material Adverse Effect; and the Company is duly registered and in good standing under the BHCA; and neither the Company nor any Subsidiary is subject to any current formal arrangements or memorandum of understanding with, or cease and desist order by, any banking or similar regulatory agency, other than commitments to the Federal Reserve Bank dated in 1989, as amended March 12, 1991, March 14, 1994, February 5, 1996 and February 26, 1996.
(2) The Common Stock conforms to the description thereof in the Registration Statement;
(3) The authorized, issued and outstanding shares of Common Stock are as set forth in the Registration Statement, have been duly authorized and validly issued, and are fully paid and nonassessable and there are no preemptive, preferential, or other rights to subscribe for or purchase any shares of Common Stock or the Shares to be sold by the Company hereunder and, to the best of such counsel's knowledge after due investigation, no shares of Common Stock have been issued in violation of such rights; except as referred to in the Prospectus, there are no restrictions upon the voting or transfer of the Common Stock or the Shares pursuant to the Company's Articles of Incorporation, bylaws, and other governing documents, or any agreement or other instrument to which the Company or any of its Subsidiaries is a party or by which any of them may be bound; all of the outstanding shares of capital stock of each Subsidiary have been duly authorized and validly issued, are fully paid and nonassessable, and are held free and clear of any lien, claim, encumbrance or security interests, except for the security interest in favor of Boatmen's First National Bank, N.A., which interest shall terminate immediately upon the application of the net proceeds from the sale of the Shares as described in the Prospectus; all offers, sales and issuances of the capital stock of the Company and its subsidiariesSubsidiaries within three years prior to the date hereof are, taken as a wholeto the best of such counsel's knowledge, described in Part II of the Registration Statement, and were made in compliance with, and the offers and sales made from January 1995 through January 1996 were registered under or exempt from, the registration requirements of the Act and were duly registered or qualified under, or the subject of an available exemption from, the registration provisions of the applicable Blue Sky Laws;
(B4) insofar as The Shares, when delivered to the statements contained in Representatives or upon the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description order of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) 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 obligation enforceable Representatives against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law); and the Securities have been duly authorized and, when executed and authenticated payment therefor in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be legalduly authorized and validly issued, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effectfully paid, and subject nonassessable and the Underwriters will acquire good title to general principles the Shares sold by the Company, free and clear of equityany lien, regardless of whether such enforceability is considered in a proceeding in equity claim, encumbrance, or at law)other security interest created by the Company;
(D5) the The Registration Statement and any all post-effective amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use Statement has been issued and and, to the best of such counsel's knowledge, no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and all filings required by Rule 424 and Rule 430A of the Rules and Regulations have been made; the Registration Statement, the Prospectus, and each amendment or supplement thereto (except for the financial statements and other statistical or financial data included 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 Rules and Regulations; such counsel has participated in the preparation of the Registration Statement and the Prospectus, including review of and discussion of the contents thereof, and no facts have come to the attention of such counsel which lead it to believe that either the Registration Statement, the Prospectus, or any such amendment or supplement, as of their respective effective or issue dates, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as amended or supplemented, if applicable, as of the First Closing Date or the Second Closing Date, as the case may be, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which made (except for the financial statements and other statistical or financial data included therein as to which such counsel need express no opinion). There are no amendments to the Registration Statement required to be filed that have not been so filed. To the best of such counsel's knowledge after due investigation, there are no legal or governmental proceedings pending or threatened that are required to be described in the Registration Statement that are not described as required, nor are there any contracts or documents of a character required to be described in the Registration Statement or to be filed as exhibits to the Registration Statement that are not described or filed as required;
(E6) The Company has full corporate power and authority to execute, deliver, and perform this Agreement and to issue, sell, and deliver the Shares to be sold by it to the Underwriters as provided herein; this Agreement has been duly authorized, executed and delivered by the Company, and constitutes a legal, valid, and binding obligation of the Company and is enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution may be limited by federal or state securities laws and except as enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief;
(F7) no authorizationNeither the Company nor any of its Subsidiaries is, approval or other action bywith the giving of notice or the lapse of time or both will be, and no notice to, consent of, order in violation or breach of, or filing within default under, any U.S. federal nor will the execution or California delivery of, or Delaware governmental authority or agency is required for the performance and consummation of the transactions contemplated hereinby this Agreement (including the offer, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution sale or delivery of the Securities and such other approvals (specified in such opinionShares) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or the fulfillment of the terms hereof will conflict with, or result in a violation or breach of, or constitute a default under, any provision of the charter Articles of Incorporation, bylaws (as amended or by-laws restated), or other governing documents of the Company or, to such counsel’s knowledge, the terms or any Subsidiary or any provision of any Material Agreementsagreement, contract, mortgage, deed of trust, lease, loan agreement, indenture, note, bond or other evidence of indebtedness, or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which any of them is bound, or to which any of their properties is subject, (in the case of any document not filed as an exhibit to the Registration Statement, to the knowledge of such counsel after due investigation), nor will the performance by the Company of its obligations hereunder violate any rule, regulation, order, or decree or regulation known to such counsel to be after due investigation, applicable to the Company or any Subsidiary of any U.S. court or any regulatory body, administrative agency, or other governmental body having jurisdiction over the Company, any Subsidiary or any of their respective properties, or any order of any court or governmental agency or authority entered in any proceeding to which the Company or any Subsidiary was or is now a party or by which it is bound;
(8) To the knowledge of such counsel, there are no holders of Common Stock or other securities of the Company with rights to have such securities included in the Registration Statement;
(9) No consent, approval, filing, authorization, registration, qualification, or order of or with any court or governmental agency or body (including any bank regulatory agency) is required for the issue and sale of the Shares or in connection with the consummation of the transactions contemplated in this Agreement, other than such as have been obtained or made;
(10) Neither the Company nor any Subsidiary owns any equity interest in any corporation, joint venture, proprietorship, or other commercial entity or organization except the Subsidiaries listed in the Registration Statement; and the Company owns, directly or indirectly, beneficially and of record all of the outstanding capital stock of each Subsidiary free and clear of any claim, lien, encumbrance, or security interest, except for the security interest in favor of Boatmen's First National Bank, N.A., which interest shall terminate immediately upon the application of the net proceeds of the sale of the Shares as described in the Prospectus;
(11) The Common Stock has been designated for inclusion as a National Market System security on Nasdaq;
(12) The conditions for the use of Form SB-2 have been satisfied with respect to the Registration Statement;
(13) Except where such failure would not be reasonably likely to have a Material Adverse Effect, the Company and each Subsidiary have and hold, and are in substantial compliance with, all Permits required under all state and federal laws, rules, and regulations in connection with their respective businesses, and all of such Permits are in full force and effect; and, to the knowledge of such counsel after due investigation, there is no pending proceeding, and neither the Company nor any Subsidiary has received notice of any threatened proceeding, relating to the revocation or modification of any such Permit. Neither the Company nor any Subsidiary is (by virtue of any action, omission to act, contract to which it is a party or by which it is bound, or any occurrence or state of facts whatsoever) in violation of any applicable federal or California state laws, rules, regulations, or, to the knowledge of such counsel, orders issued pursuant to federal or Delaware courtstate statutes, laws, ordinances, rules, or regulations (including those relating to any aspect of banking, bank holding companies, environmental protection, occupational safety and health, and equal employment practices), except any such violation that has been fully cured or satisfied without recourse or that is not reasonably likely to have a Material Adverse Effect;
(14) The Company is not an "investment company" or a company "controlled" by an "investment company," within the meaning of the Investment Company Act of 1940 and, upon its receipt of the net proceeds from the sale of the Shares, will not become or be deemed to be an "investment company" thereunder; and
(15) Such counsel has reviewed all agreements, contracts, indentures, leases, and other documents and instruments referred to in the Registration Statement and the Prospectus and the descriptions of such documents are fairly summarized or disclosed therein, and filed as exhibits thereto as required and such counsel does not know, after due inquiry, of any agreements, contracts, indentures, leases or other documents or instrument required to be so summarized or disclosed or filed which have not been so summarized, disclosed, or filed. The descriptions in the Registration Statement of statutes, regulations, and legal or governmental proceedings are accurate and present fairly the information required to be shown. Such counsel may rely as to factual matters on certificates of officers of the Company and of state officials and, as to legal matters in jurisdictions other than those in which they are domiciled, on opinions of local counsel, in each case satisfactory to
Appears in 2 contracts
Sources: Underwriting Agreement (Gold Banc Corp Inc), Underwriting Agreement (Gold Banc Corp Inc)
Conditions to the Obligations of the Underwriters. The ------------------------------------------------- obligations of the several Underwriters to purchase the Securities under this Agreement shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time, set forth as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) hereof and as of the each Closing Date, to the accuracy in all material respects of the statements of the Company Company's officers made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder hereunder, and to the following additional conditions, unless waived in writing by the Representative:
(a) The Final Prospectus, or any supplement thereto, Registration Statement shall have been filed in declared effective by the manner Commission; all filings required by Rules 424(b) and within 430A under the time period required under Rule 424(b), and any Issuer Free Writing Prospectus Act shall have been filed in the manner and within the time period required by Rule 433timely made; and no stop order suspending the effectiveness of the Registration Statement shall have been issued by the Commission or any state securities commission nor, to the knowledge of the Company, shall any proceedings for that purpose have been initiated or threatened; and any request of the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or any notice that would prevent its use, as amended from time to timeotherwise, shall have been issued and no proceedings for that purpose shall have been instituted or threatenedcomplied with to the reasonable satisfaction of the Representative.
(b) The Since the dates as of which information is given in the Registration Statement: (i) there shall not have occurred any change or development involving, or which would be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business; and (ii) the Company shall not have furnished sustained any material loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree, the effect of which on the Company, in any such case described in clause (i) or (ii) above, is, in the sole discretion of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(c) The Representative shall not have been advised that the Registration Statement or the Prospectus contains an untrue statement of fact that, in the opinion of the Representative or counsel to the RepresentativesUnderwriters, is material, or omits to state a fact that, in the opinion of the Representative or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(d) The Representative shall have received an opinion of Bartlit ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company, addressed to the Representative, in its capacity as the Representative of the Underwriters, and dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that, subject to customary qualifications and assumptions:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the Company, dated the Closing Date, substantially to the effect that:
(A) the The Company has been duly incorporated and is validly existing as a corporation and in good standing under the laws of the State its jurisdiction of Delawareincorporation, with full corporate power and authority to own own, lease and operate its properties and conduct its business as presently conducted and as described in the Disclosure Package Prospectus and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken as a wholeRegistration Statement;
(Bii) insofar the Company is duly registered and qualified to do business as a foreign corporation under the statements contained laws of, and is in good standing as such in the Disclosure Package, States of Ohio and California;
(iii) the statements contained in the Final Prospectus under the caption “Description authorized capital stock of the Global Notes” Company consists of 150,000,000 shares of Class A Common Stock, par value $0.0001 per share, and the statements contained in the Base Prospectus under the caption “Description 50,000,000 shares of the Debt Securities” purport to describe specific provisions Class B Common Stock, par value $0.0001 per share, and 50,000,000 shares of the Securities or the Indenturepreferred stock, par value $0.0001 per Share, and all such statements present stock conforms in all material respects an accurate summary of such provisionsto the descriptions thereof in the Prospectus and the Registration Statement;
(Civ) the Indenture has been duly authorized, executed issued and delivered outstanding shares of capital stock of the Company immediately prior to the issuance and sale of the Shares to be sold by the Company, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law); and the Securities hereunder have been duly authorized and validly issued, are fully paid and nonassessable, and there are no preemptive rights to subscribe for or purchase any shares of capital stock of the Company, and no shares of capital stock of the Company have been issued in violation of such rights;
(v) to such counsel's knowledge, except for the Subsidiaries, the Company has no significant subsidiaries, and the Company does not own any equity interest in or control, directly or indirectly, any other corporation, limited liability company, partnership, joint venture, association, trust or other business organization except as described in the Prospectus and the Registration Statement; each Subsidiary is validly existing in good standing under the laws of its jurisdiction of incorporation or formation, with full power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; Gaiam Catalog, Inc. is duly registered or qualified to do business as a foreign entity under the laws of, and is in good standing as such in the State of Ohio; the issued and outstanding shares of the capital stock or other equity of each Subsidiary have been duly authorized and validly issued, are fully paid and nonassessable and there are no preemptive rights to subscribe for or purchase any shares of capital stock of or other equity interest in any Subsidiary, and no shares of capital stock or other equity interest of any Subsidiary have been issued in violation of such rights; the Company owns directly and beneficially all of the issued and outstanding capital stock or other equity of each Subsidiary except as otherwise described in the Registration Statement, free and clear of any and all liens, claims, encumbrances and security interests except as described in the Registration Statement;
(vi) the certificates for the Shares to be delivered hereunder are in due and proper form and conform to the requirements of applicable law, and, when executed duly countersigned by the Company's transfer agent, and authenticated delivered to the Representative or upon the order of the Representative against payment of the agreed consideration therefor in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, the Shares to be sold by the Company represented thereby will be legalduly authorized and validly issued, valid fully paid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effectnonassessable, and subject free of any preemptive rights to general principles subscribe for or purchase shares of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law)Common Stock;
(Dvii) the Registration Statement and any amendments thereto have has become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectusand, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use Statement has been issued and no proceedings for that purpose have been instituted initiated or are pending threatened under the Act or contemplated any Blue Sky Laws; the Registration Statement and the Prospectus and any amendment or supplement thereto (except for the financial statements and other statistical or financial data included therein, as to which such counsel need express no opinion), comply as to form in all material respects with the requirements of the Act, including Form S-1 promulgated under the Act;
(Eviii) the Company has the corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action, and this Agreement has been duly authorized, executed and delivered by and on behalf of the Company;
(F) , and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms; no authorizationconsent, approval approval, authorization or other action byorder or decree of any court, and no notice toregulatory or governmental body, consent ofarbitrator, order of, administrative agency or filing with, any U.S. federal other instrumentality of the United States or California or Delaware governmental authority or agency of the State of Colorado is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated herein, by this Agreement (except such as have been obtained under for compliance with the Act, the Exchange Act Act, applicable Blue Sky Laws and the Trust Indenture Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution clearance of the Securities and such other approvals (specified in such opinion) as have been obtained; andunderwriting arrangements by the NASD);
(Gix) none the execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the issue and sale Articles of Incorporation or By-laws (or equivalents thereto) of the Securities, the consummation of Company or any other of the transactions herein contemplated Subsidiary; (B) or the fulfillment of the terms hereof will conflict with, result in a breach the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the charter Company or byany Subsidiary is a party or by which the Company or such Subsidiary, or any of their respective owned or leased property is bound, and which is filed as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, rule, or regulation of any regulatory or governmental body, or to such counsel's knowledge, any order or decree of any court, arbitrator, administrative agency or other instrumentality of the United States or of the State of Colorado (assuming compliance with all applicable federal and state securities laws);
(x) to such counsel's knowledge, except as described in the Prospectus, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities;
(xi) the Class A Common Stock (including the Shares) has been designated for inclusion as a National Market security on The Nasdaq Stock Market and is registered under the Exchange Act;
(xii) neither the Company nor any Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or By-laws of the Company (or their equivalents) or, to such counsel’s 's knowledge, in default in any material respect in the terms performance of any Material Agreementsagreement, lease, franchise, license, permit, mortgage, deed of trust, evidence of indebtedness or other instrument, or any material decree other document in each case that is filed as an exhibit to or regulation known incorporated by reference in the Registration Statement, to such counsel to be applicable to which the Company of or any U.S. federal Subsidiary is subject or California or Delaware court,bound;
Appears in 2 contracts
Sources: Underwriting Agreement (Gaiam Inc), Underwriting Agreement (Gaiam Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company and Carnival plc contained herein (or the accuracy in all material respects with respect to any representation or warranty on the part of the Company and Carnival plc which has no materiality qualification) as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) Time and as of the Closing Date, to the accuracy in all material respects of the statements of the Company and Carnival plc made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by each of the Company and Carnival plc of its obligations hereunder hereunder, to the due execution and delivery of the Indenture, to the absence of any event or condition which would give you the right to terminate this Agreement and to the following additional conditions:
(a) The Final Prospectus, or and any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) objecting to use of the automatic shelf registration statement form and at the Closing Date no stop order suspending the effectiveness of the Registration Statement, or any notice that would prevent its use, as amended from time to time, Statement shall have been issued and no under the Act or proceedings for that purpose shall have been instituted therefor initiated or threatenedthreatened by the Commission.
(b) The At the Closing Date, the Company shall have furnished to the Representatives:
(i) you the opinion of the General CounselCounsel to the Company and Carnival plc, or an Associate General Counsel or a Deputy General Counsel to the Company and Carnival plc that practices in the area of the Company, or an outside counsel for the Companycorporate and securities law, dated the Closing Date, substantially to in the effect that:form of Exhibit A hereto.
(Ac) At the Closing Date, the Company has been duly incorporated shall have furnished to you the opinion and is validly existing as a corporation in good standing under the laws statement of the State of Delaware▇▇▇▇, with full corporate power and authority Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiariesCarnival plc, taken as a whole;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.
(Bd) insofar as The Underwriters shall have received from Sidley Austin LLP, counsel for the statements contained in 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 statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) 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 obligation enforceable against the Company in accordance together with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at lawany supplement thereto); 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 in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing ProspectusProspectus 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 Preliminary Prospectus 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, Prospectus and any supplements thereto, pursuant or amendments to Rule 424(bany 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 Rule 433 has been made in the manner and within the time period required by Rule 424(b) satisfied at or Rule 433, as the case may be; prior to the best knowledge of such counsel, Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under or, to the Act;Company’s knowledge, threatened; and
(Eiii) this Agreement 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 been duly authorizedmade all filings with the Commission and announcements, executed and delivered in either case required to be made by the Company;Act or the Exchange Act.
(Ff) no authorizationThe Underwriters shall have received from PricewaterhouseCoopers LLP, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required independent registered public accounting firm for the consummation Company and Carnival plc at the Execution Time and at the Closing Date, letters, dated as of the transactions contemplated hereinExecution Time and as of the Closing Date, except such as have been obtained under the Actcase 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 Trust Indenture Act respective applicable published rules and such 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 may be required under applicable, and certain financial information contained or incorporated by reference in the blue sky laws 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 jurisdiction 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 connection 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 purchase and distribution 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 other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation cancellation shall be without liability of any party to any other party, except to the extent provided in Sections 4 and 6. Notice of the transactions herein contemplated or 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, to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to cancellation shall be applicable given to the Company of any U.S. federal in writing or California by telephone or Delaware court,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 Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of and any document incorporated by reference therein) and as of the Closing Datesettlement date pursuant to Section 3, to the accuracy in all material respects of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final ProspectusRegistration Statement, including any Rule 462(b) Registration Statement, has become effective and, at the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any supplement theretopost-effective amendment thereto has been issued under the Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s knowledge, contemplated; and the Company has complied with each request (if any) from the Commission for additional information. A prospectus containing the Rule 430A Information shall have been filed in with the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed Commission in the manner and within the time period required by Rule 433424(b) without reliance on Rule 424(b)(8) or a post-effective amendment providing such information shall have been filed with, and declared effective by, the Commission in accordance with the requirements of Rule 430A; and no stop order suspending notice objecting to the effectiveness use of the Registration Statement, or any notice that would prevent its use, as amended from time to time, Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, P.A., counsel for the Company, to have furnished to the Representatives its opinion and 10b-5 statement dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Representatives shall have received from Sidley Austin LLP, counsel for the Underwriters, its opinion and 10b-5 statement, dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the Representatives, and the Company shall have furnished to such counsel such documents as they may request for 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 the principal financial or accounting officer of the Company, dated the Closing Date and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering, and this Agreement and that:
(i) the opinion representations and warranties of the General Counsel, an Associate General Counsel Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or a Deputy General Counsel of the Company, satisfied at or an outside counsel for the Company, dated the Closing Date, substantially prior to the effect that:such date;
(Aii) the Company has been duly incorporated complied with all agreements and is validly existing as a corporation in good standing under satisfied all conditions on its part to be performed or satisfied at or prior to the laws of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken as a wholeClosing Date;
(Biii) insofar as the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, Statement or any notice that would prevent objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or, to the Company’s knowledge, threatened; and
(iv) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated under in the Act;Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(Ee) The Company shall have furnished to the Representatives a certificate of the Chief Financial Officer of the Company dated the date that this Agreement has been duly authorized, is executed and delivered by the Company;parties hereto, the Closing Date and any settlement date, as applicable, in form and substance satisfactory to the Representatives.
(Ff) no authorizationThe Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to have furnished to the Representatives, approval at the Execution Time and at the Closing Date and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing Date and any settlement date, as applicable, in form and substance satisfactory to the Representatives.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date, and any settlement date, as applicable, the Company shall have furnished to the Representative such further information, certificates and documents as the Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation arrangements of the transactions contemplated hereinhereby.
(j) The Securities shall be duly listed subject to notice of issuance on Nasdaq, except such as satisfactory evidence of which shall have been obtained under provided to the ActRepresentatives.
(k) On the Effective Date, the Exchange Act Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Securities Purchase Agreements, the Warrant Subscription Agreement, the Insider Letters, the Anchor Investment Agreements, and the Registration and Stockholder Rights Agreement. By the Closing Date, the Company shall have delivered to the Representatives an executed copy of the Administrative Services Agreement. With regard to the Insider Letters, if any additional persons shall become executive officers, directors or director nominees of the Company prior to the end of the 180-day restricted period referred to in Section 5(h), the Company shall cause each such person, prior to or contemporaneously with their appointment or election as an executive officer, director and director nominee to execute and deliver to the Representative the Insider Letters.
(l) The Sponsor (at least one (1) Business Day prior to the Effective Date) shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Indenture Act and such as may be required under the blue sky laws of any jurisdiction in connection Account so that together with the purchase and distribution net proceeds for the Firm Securities (including the Deferred Discount), or with respect to the Firm Securities, the net proceeds from the Option Securities (including the Deferred Discount), the Trust Account would equal the product of the Securities number of Units sold and such other approvals (specified in such opinion) the public offering price per Unit as have been obtained; and
(G) none set forth on the cover of the issue and Prospectus. Notwithstanding the foregoing, in no event will the Company take any action that would result in the Company receiving proceeds from the sale of the SecuritiesPrivate Placement Warrants in excess of the sum of: (i) the amount required to satisfy the obligation in the immediately preceding sentence; (ii) the amount of the discount from the public offering price represented by the purchase price set forth in Schedule II of this Agreement and (iii) the amount of money to be held by the Company outside of the Trust Account, as disclosed in the Registration Statement, the consummation of any other Statutory Prospectus and the Prospectus.
(m) No order preventing or suspending the sale of the transactions herein contemplated or Units in any jurisdiction designated by the fulfillment Representatives pursuant to Section 5(ii) hereof shall have been issued as of the terms hereof will conflict withClosing Date, result and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in a breach ofthis Section 6 shall not have been fulfilled when and as provided in this Agreement, or constitute a default underif any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the charter or by-laws Closing Date by the Representatives. Notice of the Company or, to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to cancellation shall be applicable given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 and, if applicable, the last sentence of any U.S. federal Section 3(d), shall be delivered at the office of Sidley Austin LLP, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date or California or Delaware court,the applicable settlement date, as applicable.
Appears in 2 contracts
Sources: Underwriting Agreement (Crixus BH3 Acquisition Co), Underwriting Agreement (Crixus BH3 Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters Underwriters, as to purchase Securities to be purchased at the Securities Time of Delivery, shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) hereof and at and as of the Closing DateTime of Delivery, to the accuracy in all material respects of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final ProspectusProspectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a)(i); the final term sheet contemplated by Section 5(a)(i), or and any supplement theretoother material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed in with the manner and Commission within the applicable time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, Statement or any notice that would prevent its use, as amended from time to time, part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or threatened.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 issued and no proceeding for that purpose 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 to your reasonable satisfaction;
(b) The Company [ ], counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated the Representatives:Time of Delivery, in form and substance satisfactory to you, with respect to such matters as the Underwriters may reasonably require, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(ic) the opinion of the General Counsel, an Associate The Company’s General Counsel or a Deputy General Counsel such other internal counsel as shall be reasonably acceptable to the Underwriters shall have furnished to you such counsel’s written opinion, to the effect set forth in Exhibit A, dated the Time of the CompanyDelivery, or an outside in form and substance satisfactory to you;
(d) ▇▇▇▇▇▇▇ LLP, Maryland counsel for the Company, dated the Closing Dateshall have furnished to you their written opinion, substantially to the effect that:
(A) set forth in Exhibit B, dated the Company has been duly incorporated Time of Delivery, in form and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full corporate power and authority substance satisfactory to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken as a wholeyou;
(B) insofar as the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to be applicable to the Company of any U.S. federal or California or Delaware court,
Appears in 2 contracts
Sources: Underwriting Agreement (Huntington Bancshares Inc/Md), Underwriting Agreement (Huntington Bancshares Inc/Md)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities hereunder shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) hereof and as of the Closing on each Delivery Date, to the accuracy in all of any material respects of the statements of the Company made in any certificates delivered by certificates, opinions, affidavits, written statements or letters furnished to the Company Representative(s) or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP (“Underwriters’ Counsel”) pursuant to the provisions hereofthis Section 6, to the performance in all material respects by the Company of its respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed with the Commission pursuant to Rule 424 not later than the Commission’s close of business, on the second business day following the date of this Agreement or such later date and time as shall be consented to in writing by the Representative(s).
(b) No order suspending the effectiveness of the Registration Statement, as amended from time to time, or suspending the qualification of the Indenture shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Final Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative(s).
(c) Since the respective dates as of which information is given in the Registration Statement and the Final Prospectus, there shall not have been any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 which, in the judgment of the Representative(s), makes it impracticable or inadvisable to proceed with the offering and delivery of the Securities as contemplated by the Registration Statement and the Final Prospectus.
(d) The Company shall have furnished to the Representative(s) the opinion of the Chief Legal Officer, General Counsel or an Associate General Counsel of the Company, 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 and authority to conduct its business as described in the Final Prospectus.
(ii) The Securities (other than any Underlying Debt Securities and any Contract Securities), the Indenture (if the Securities include Debt Securities, Warrants for Debt Securities or Prepaid Purchase Contracts), each Warrant Agreement (if the Securities include Warrants), each Unit Agreement or other document identified in Schedule I hereto (if the Securities include Non-Prepaid Purchase Contracts) and each Unit Agreement (if the Securities include Units) conform, and any Underlying Debt Securities and any Contract Securities, when so issued and delivered and sold, will conform, in all material respects to the description thereof contained in the Final Prospectus.
(iii) Each of the Indenture (if the Securities include Debt Securities, Warrants for Debt Securities or Prepaid Purchase Contracts), the Warrant Agreements (if the Securities include Warrants), the Unit Agreements or other documents identified in Schedule I hereto (if the Securities include Non-Prepaid Purchase Contracts) and the Unit Agreements (if the Securities include Units) has been duly authorized, executed and delivered by the Company, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms; the Indenture (if the Securities include Debt Securities, Warrants for Debt Securities or Prepaid Purchase Contracts) has been duly qualified under the Trust Indenture Act; the Securities have been duly authorized; the Securities (other than any Underlying Debt Securities and any Contract Securities) have been executed and issued by the Company, and assuming due authentication by the Trustee (in the case of Debt Securities or Prepaid Purchase Contracts), the applicable Warrant Agent (in the case of Warrants) , any applicable Unit Agent or other agent named in the Unit Agreement or other document identified in Schedule I hereto (in the case of Non-Prepaid Purchase Contracts) and the applicable Unit Agent (in the case of Units), and upon payment therefor and delivery thereof in accordance with this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of, in the case of Debt Securities and Prepaid Purchase Contracts, the Indenture, in the case of Warrants, the Warrant Agreement, in the case of Non-Prepaid Purchase Contracts, the Unit Agreement or other document identified in Schedule I hereto, and, in the case of Units, the Unit Agreement; the Underlying Debt Securities and the Contract Securities, when executed, authenticated, issued and delivered against payment therefor in the manner provided in the Indenture (in the case of Debt Securities and within Prepaid Purchase Contracts), the time period applicable Warrant Agreement (in the case of Warrants), any applicable Unit Agreement or other document identified in Schedule I hereto (in the case of Non-Prepaid Purchase Contracts) and the applicable Unit Agreement (in the case of Units), and (in the case of Contract Securities) sold pursuant to the Delayed Delivery Contract, will constitute legal, valid and binding obligations of the Company entitled to the benefits of, in the case of Debt Securities and Prepaid Purchase Contracts, the Indenture, in the case of Warrants, the Warrant Agreement, in the case of Non-Prepaid Purchase Contracts, the Unit Agreement or other document identified in Schedule I hereto, and, in the case of Units, the Unit Agreement; provided, however, that the foregoing is subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing.
(iv) 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, 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 and Blue Sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and (2) the qualification of the Indenture (if the Securities include Debt Securities, Warrants for Debt Securities or Prepaid Purchase Contracts) under the Trust Indenture Act, which has been obtained.
(v) Such counsel does not know of any contracts or other documents that are required by Rule 433the Securities Act or by the Rules to be filed as exhibits to the Registration Statement which have not been filed as exhibits to the Registration Statement or incorporated therein by reference as permitted by the Rules.
(vi) To such counsel’s knowledge, neither the Company nor any Significant Subsidiary that is organized under the laws of the United States or any State or territory thereof (a “Domestic Significant Subsidiary”) is in violation of its organizational documents, or in default under any material agreement, indenture or instrument known to such counsel, the effect of which violation or default would be material to the Company and its subsidiaries taken as a whole.
(vii) This Agreement and, to the extent applicable, the Delayed Delivery Contracts, have been duly authorized, executed and delivered by the Company; the execution, delivery and performance of this Agreement and any Delayed Delivery Contracts by the Company will not conflict with, or result in the creation or imposition of any material lien, charge or encumbrance upon any of the assets of the Company or any Domestic Significant Subsidiary 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 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 any 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, any Domestic Significant Subsidiary or any of their respective properties, the effect of which would be material to the Company and its subsidiaries taken as a whole.
(viii) The Registration Statement has become effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, Statement or any notice that would prevent its use, as amended from time to time, shall have Form 8-A has been issued and no proceedings proceeding for that purpose shall have has been instituted or threatenedthreatened by the Commission.
(bix) The Company shall have furnished Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto (except that no opinion need be expressed as to the Representatives:financial statements or other financial or statistical data or any 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.
(ix) If the opinion Securities are required to be listed on an Exchange prior to issuance, as indicated on Schedule I hereto, authorization for the listing of the General Counselsuch Securities on such Exchange has been given, an Associate General Counsel or a Deputy General Counsel subject to official notice of the Companyissuance and evidence of satisfactory distribution, or an outside counsel for the Company, dated the Closing Date, substantially Company has filed a preliminary listing application and all required supporting documents with respect to the effect that: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.
(Axi) the Company Each Domestic Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws law of the State jurisdiction of Delaware, with full its incorporation and each subsidiary has the corporate power and authority to own and operate its properties and to conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on Prospectus; each of the Company and its subsidiaries, taken the Domestic Significant Subsidiaries is duly qualified to do business as a whole;
(B) insofar foreign corporation, is in good standing and is duly registered as the statements contained in the Disclosure Packagea broker-dealer, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities broker, dealer or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433investment advisor, as the case may be; , in each jurisdiction in which the nature of the business conducted by it or in which the ownership or holding by lease of the properties owned or held by it require such qualification or registration and where the failure to so qualify or register would have a Material Adverse Effect.
(xii) All the best knowledge outstanding shares of capital stock of each Domestic Significant Subsidiary have been duly and validly authorized and issued and are fully paid and non-assessable and, except for directors’ qualifying shares, are owned by the Company or a subsidiary of the Company free and clear of any claims, liens, encumbrances and security interests.
(xiii) Such counsel does not know of any legal or governmental proceeding pending or threatened against the Company or any of its subsidiaries which would affect the subject matter of this Agreement or is required to be described in the Final Prospectus which is not described and correctly summarized therein. If the Securities include Debt Securities, Warrants or Purchase Contracts that may be exercised for or settled by delivery of Underlying Company Securities or Other Underlying Securities, such counselopinion will cover the additional matters set forth in Schedule IV 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 Final Prospectus (except as to those matters stated in paragraph (d)(ii), above), such counsel has no stop order suspending the effectiveness of reason to believe that (i) the Registration Statement, as amendedof its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or (ii) the Final Prospectus contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that no statement need be made as to the financial statements or other financial or statistical data or the Form T-1 included or incorporated by reference therein). In rendering such 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. If the Securities include Debt Securities, Warrants for Debt Securities or Prepaid Purchase Contracts, such counsel may rely on a certificate of the Trustee with respect to the execution of the Securities by the Company and the authentication thereof by the Trustee. Further, if any of the Securities are denominated or settled in any currency other than U.S. dollars, such counsel may (A) state that, with respect to those matters set forth in paragraph (iii), above, regarding the validity and enforceability of the Indenture (if such Securities are Debt Securities, Warrants for Debt Securities or Prepaid Purchase Contracts), the Warrant Agreements (if such Securities are Warrants), the Unit Agreements or other documents identified in Schedule I hereto (if such Securities are Non-Prepaid Purchase Contracts), the Unit Agreements (if such Securities are Units) and such Securities, and, with respect to these matters set forth in paragraphs (iv) and (vii), above, regarding any order, rule or regulation of any court or governmental agency and the authority of the Company to authorize, issue and sell such Securities, such counsel has assumed that under the laws of any country in whose currency such Securities are denominated or settled, if other than in U.S. dollars, that no consent, approval, authorization, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing withwith any governmental agency, any U.S. federal body or California or Delaware governmental authority or agency court is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture Act and such as may be required under the blue sky laws of any jurisdiction hereunder in connection with the purchase issuance and distribution sale of such Securities and compliance with the terms and provisions thereof will not result in any breach or violation of any of the terms and provisions in any statute, rule, regulation or order of any governmental agency or body or any court and (B) note that (a) a New York statute provides that with respect to a foreign currency obligation, a court of the State of New York shall render a judgment or decree in such foreign currency and such judgment or decree shall be converted into the currency of the United States at the rate of exchange prevailing on the date of entry of such judgment or decree and (b) with respect to a foreign currency obligation, a United States Federal court in New York may award judgment in U.S. dollars, provided that such counsel expresses no opinion as to the rate of exchange such court should apply.
(e) If any of the Securities are denominated or settled in any currency other than U.S. dollars, the Representative(s) shall have received from counsel, satisfactory to the Representative(s), such opinion or opinions, dated such Delivery Date, with respect to compliance with the laws of any country, other than the United States, in whose currency such Securities are denominated or settled, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such other approvals (specified in counsel such opinion) documents as have been obtained; andthey request for the purposed of enabling them to pass upon such matters.
(Gf) none The Representative(s) shall have received from Underwriters’ Counsel such opinion or opinions, dated the day of such Delivery Date, with respect to the issue issuance and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to be applicable to the Company of any U.S. federal or California or Delaware court,Registrati
Appears in 2 contracts
Sources: Underwriting Agreement (Lehman Brothers Holdings Inc), Underwriting Agreement (Lehman Brothers Holdings Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Trust and the Company contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to Initial Sale Time and the Closing Date (including including, for the filing avoidance of any document incorporated by reference therein) doubt, compliance with covenants and as conditions in the indentures of the Closing DateCompany relating to the creation, assumption or incurrence of funded indebtedness), to the accuracy in all material respects of the statements of the Trust and the Company made in any certificates delivered by the Company pursuant to the provisions hereofof this Section 5, to the performance in all material respects by each of the Trust and the Company of its obligations hereunder and to the following additional conditions:
(ai) The Final Prospectus, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Canadian Supplemental PREP Prospectus shall have been filed with the Reviewing Authorities under Applicable Canadian Securities Law and (ii) the U.S. Supplemental Prospectus shall have been filed with the Commission pursuant to General Instruction II.L. of Form F-10 under the Act, in the manner and each case, within the applicable time period required by Rule 433prescribed for such filing and in accordance with Section 4(a) hereof; and no stop order suspending the effectiveness of the Registration Statement, Statement or any notice that would prevent its usepart thereof shall have been issued and no order preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for any such purpose shall have been initiated or threatened by the Commission or the Reviewing Authorities;
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇▇ LLP, as amended from time U.S. counsel for the Company, to timehave furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect set forth in Annex I hereto;
(c) Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Canadian counsel for the Company, shall have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, with respect to the laws of the Province of Alberta, the Province of Ontario and the federal laws of Canada applicable therein, to the effect set forth in Annex II;
(d) Stikeman Elliott LLP, Canadian tax counsel for the Company, shall have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, with respect to the laws of the Province of Alberta, the Province of Ontario and the federal laws of Canada applicable therein, to the effect set forth in Annex III.
(e) The Representatives shall have received from ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. 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 (if applicable), the Registration Statement, the Disclosure Package, the U.S. Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably require and request for the purpose of enabling them to pass upon such matters;
(f) The Representatives shall have received from United States in-house counsel to the Company, an opinion to the effect set forth in Annex IV;
(g) As of the date hereof, TransCanada Corporation shall have executed a Letter Agreement substantially in the form attached hereto as Annex V;
(h) The Company shall have furnished to the Representatives a certificate of the Trust signed by the Vice-President, Finance and Treasurer and the Executive Vice-President, Corporate Development and Chief Financial Officer of the Company, in its capacity as Administrative Agent of the Trust, dated the Closing Date, to the effect of (i), (ii) and (iii) in this paragraph 5(h) below and a certificate of the Company, signed by the Vice-President, Finance and the Executive Vice-President and Chief Financial Officer of the Company, dated the Closing Date, to the effect that:
(i) the signers of such certificates have carefully examined the Registration Statement, the Canadian Final Prospectus, the Disclosure Package and the U.S. Final Prospectus, any supplements to the Canadian Final Prospectus, the Disclosure Package and the U.S. Final Prospectus and this Agreement;
(ii) the representations and warranties of the Trust or the Company, as applicable, 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 Trust or the Company, as applicable, has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement or stop order preventing or suspending the use of any prospectus relating to the Securities has been issued and no proceedings for that purpose shall have been been, to the Trust’s or the Company’s knowledge, as applicable, instituted or threatened.threatened by the Reviewing Authorities or the Commission;
(biv) The Company shall have furnished to since the Representatives:
(i) the opinion date of the General Counselmost recent financial statements included or incorporated by reference in the Canadian Final Prospectus and the Disclosure Package, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the Company, dated the Closing Date, substantially to the effect that:
(A) the Company there has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a no material adverse effect on the condition (financial or otherwise), earnings, business or properties of the Trust or 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 Canadian Final Prospectus and the Disclosure Package; and
(v) the Trust and the Company are in compliance with the covenants and conditions in the indentures of the Trust and the Company, as applicable, relating to the creation, assumption or incurrence of funded indebtedness;
(Bi) insofar as At the Initial Sale Time and the Closing Date, the Representatives shall have received from KPMG LLP a letter or letters dated such date or dates, in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such letter or letters for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the U.S. Final Prospectus, the Disclosure Package, any Issuer Free Writing Prospectus and the Canadian Final Prospectus. At the Initial Sale Time and the Closing Date, the Representatives shall have received from Deloitte & Touche LLP a letter or letters dated such date or dates, in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such letter or letters for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the Columbia Financial Information and certain financial information of Columbia contained in the Registration Statement, the U.S. Final Prospectus, the Disclosure Package, any Issuer Free Writing Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisionsCanadian Final Prospectus;
(Cj) Subsequent to the Indenture has been duly authorizedInitial Sale Time or, executed and delivered by if earlier, the Company, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding obligation enforceable against the Company dates as of which information is given in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under as amended or supplemented prior to the Act; any required filing of Initial Sale Time, the Base ProspectusCanadian Final Prospectus as amended or supplemented prior to the Initial Sale Time, the Disclosure Package or any Issuer Free Writing Prospectus, there shall not have been (i) any Preliminary Prospectus change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 5 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 Trust or 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 Canadian Final Prospectus, as amended or supplemented prior to the Initial Sale Time, and the Disclosure Package the effect of which, in any supplements thereto, pursuant case referred to Rule 424(bin clause (i) or Rule 433 has been made (ii) above, is, in the manner sole judgment of the Representatives, so material and within adverse as to make it impractical or inadvisable to proceed with the time period required offering or delivery of the Securities as contemplated by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, the Canadian Final Prospectus, the U.S. Final Prospectus, the Disclosure Package and any Issuer Free Writing Prospectus;
(k) Subsequent to the Initial Sale Time, there shall not have been any decrease in the rating of any of the Trust’s or the Company’s debt securities by any “nationally recognized statistical rating organization” (as amended, defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under does not indicate the Actdirection of the possible change;
(El) this Agreement If the Registration Statement or an offering of Securities has been duly authorizedfiled with the FINRA for review, executed the FINRA shall not have raised any objection with respect to the fairness and delivered by reasonableness of the Companyunderwriting terms and arrangements;
(Fm) no authorizationAt the Initial Sale Time and the Closing Date, approval or other action bythe Representatives shall have received from the Executive Vice-President, Corporate Development and Chief Financial Officer of the Company a certificate, dated such date, in form and substance satisfactory to the Representatives, with respect to certain financial data relating to the Trust contained in the Registration Statement, the U.S. Final Prospectus, the Disclosure Package, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtainedCanadian Final Prospectus; and
(Gn) none Prior to the Closing Date, the Trust and the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the issue conditions specified in this Section 5 shall not have been fulfilled in all material respects when and sale as provided in this Agreement, or if any of the Securitiesopinions 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 consummation Closing Date by the Representatives. Notice of any other such cancellation shall be given to the Trust and the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 5 shall be delivered at the office of the transactions herein contemplated Company, Attention: Corporate Secretary, 45▇ — ▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇n the Closing Date or 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 such other place as the Company or, to such counsel’s knowledge, and the terms of any Material Agreements, or any material decree or regulation known to such counsel to be applicable to the Company of any U.S. federal or California or Delaware court,Representatives shall so agree.
Appears in 2 contracts
Sources: Underwriting Agreement (TransCanada Trust), Underwriting Agreement (Transcanada Pipelines LTD)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Notes shall be subject subject, in the discretion of the Representatives, to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) hereof and as of the Closing Date, to the accuracy in all material respects of the statements of the Company Company’s officers on and as of the Closing Date made in any certificates delivered by the Company given pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in with the manner and Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) hereof; all filings (including, without limitation, the Final Term Sheet) required by Rule 433433 under the Act shall have been made, and no such filings shall have been made without the consent of the Representatives; and no stop order suspending the effectiveness of the Registration Statement, Statement or any notice that would prevent its use, as amended from time to time, part thereof or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or threatenedthreatened by the Commission; no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; and all requests for additional information on the part of the Commission shall have been complied with to the Representatives’ reasonable satisfaction.
(b) The Representatives shall be furnished with opinions, dated the Closing Date, of , Vice President and [Deputy] General Counsel of the Company, that address substantially the matters set forth in Exhibit A, and ▇▇▇▇▇ Day, Chicago, Illinois, counsel for the Company, that address substantially the matters set forth in Exhibit B.
(c) The Representatives shall have received from , counsel for the Underwriters, such opinion or opinions dated the Closing Date with respect to such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives:
(i) the opinion Representatives a certificate of the General Counsel, an Associate General Counsel President or a Deputy General Counsel any Vice President of the Company, or an outside counsel for the Company, dated the Closing Date, substantially as to the matters set forth in paragraphs (a) and (h) of this Section 7 and to the further effect that the signers of such certificate have examined the Registration Statement, the Prospectus and this Agreement and that, to the best of his or her knowledge:
(Ai) 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; and
(ii) there has been duly incorporated no material adverse change in the condition of the Company and is validly existing its subsidiaries taken as a corporation whole, financial or otherwise, or in good standing under the laws earnings, affairs or business prospects of the State of DelawareCompany and its subsidiaries taken as a whole, with full corporate power and authority to own its properties and conduct its business as described whether or not arising in the Disclosure Package ordinary course of business, from that set forth or contemplated by the Registration Statement, the most recent Preliminary Prospectus, or Prospectus.
(e) The Representatives shall have received letters from Deloitte & Touche LLP, independent public accountants for the Company (dated the date of this Agreement and Final Closing Date, respectively, and in form and substance satisfactory to the Representatives) advising that (i) they are an independent registered public accounting firm with respect to the Company as required by the Act and published rules and regulations of the Commission thereunder, (ii) in their opinion, the consolidated financial statements and supplemental schedules included or incorporated by reference in the Registration Statement, the most recent Preliminary Prospectus or Prospectus and covered by their opinion filed with the Commission under Section 13 of the Exchange Act comply as amended to form in all material respects with the applicable accounting requirements of the Exchange Act and the published rules and regulations of the Commission thereunder, (iii) that they have performed limited procedures, not constituting an audit, including a reading of the latest available interim financial statements of the Company, a reading of the minutes of meetings of the Board of Directors, committees thereof, and of the shareholder of the Company since the date of the most recent audited financial statements included or supplementedincorporated by reference in the most recent Preliminary Prospectus or Prospectus, inquiries of officials of the Company responsible for financial accounting matters and such other inquiries and procedures as may be specified in such letter, and on the basis of such limited review and procedures nothing came to their attention that caused them to believe that: (A) any material modifications should be made to any unaudited consolidated financial statements of the Company included or incorporated by reference in the Registration Statement, the most recent Preliminary Prospectus or Prospectus for them to be in conformity with generally accepted accounting principles or any unaudited consolidated financial statements of the Company included or incorporated by reference in the Registration Statement, the most recent Preliminary Prospectus or Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the rules and regulations of the Commission applicable to Form 10-Q; and (B) with respect to the period subsequent to the date of the most recent financial statements included or incorporated by reference in the most recent Preliminary Prospectus or Prospectus and except where such failure would as set forth in or contemplated by the Registration Statement the most recent Preliminary Prospectus or Prospectus, there were any adverse changes, at a specified date not have more than three business days prior to the date of the letter, in the capital stock of the Company or increases in long-term debt of the Company on a material adverse effect consolidated basis as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated by reference in the most recent Preliminary Prospectus or Prospectus, or as of there were any decreases in stockholders’ equity or net current assets of the Company on a consolidated basis as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated by reference in the Prospectus for the period from the date of the most recent financial statements included or incorporated by reference in the Prospectus to there were any decreases, as compared with the corresponding period in the preceding year, in operating revenues, operating income or net income of the Company and its subsidiaries, taken as a whole;
(B) insofar as the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present except in all material respects instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an accurate summary of such provisions;
(C) the Indenture has been duly authorized, executed and delivered explanation by the Company, has been duly qualified under Company as to the Trust Indenture Act, and constitutes a legal, valid and binding obligation enforceable against significance thereof unless said explanation is not deemed necessary by the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law)Representatives; and the Securities (iv) they 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 in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required carried out specified procedures performed for the consummation purpose of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act comparing certain specified financial information and the Trust Indenture 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 and such other approvals percentages (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or the fulfillment of the terms hereof will conflict with, result in a breach of, or constitute a default under, the charter or by-laws which is limited to financial information derived from general accounting records of the Company or, to the extent not so derived, from schedules prepared by Company officers responsible for such counsel’s knowledgeaccounting records) included or incorporated by reference in the Registration Statement, the most recent Preliminary Prospectus and Prospectus with indicated amounts in the financial statements or accounting records of the Company and (excluding any questions of legal interpretation) have found such information and percentages to be in agreement with the relevant accounting and financial information of the Company referred to in such letter in the description of the procedures performed by them.
(f) Subsequent to the respective dates as of which information is given in the Registration Statement and the most recent Preliminary Prospectus, there shall not have been any adverse change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 7 which is so material and adverse as to make it impractical or inadvisable in the judgment of the Representatives to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated by the Pricing Disclosure Package.
(g) Subsequent to the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Notes or any other debt securities or preferred stock of or guaranteed by the Company by any “nationally recognized statistical rating organization,” as such term is defined by the Commission for purposes of Rule 436(g)(2) under the Act (other than downgrades of debt securities issued on behalf of governmental entities for the benefit of the Company solely as a result of downgrades of ratings of any Material Agreementsthird parties insuring such securities) and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Notes or of any other debt securities or preferred stock of or guaranteed by the Company (other than an announcement with positive implications of a possible upgrading and other than with respect to debt securities issued by or on behalf of governmental entities for the benefit of the Company solely as a result of any such announcement with respect to third parties insuring such debt securities).
(h) Neither the Company nor any of its subsidiaries (i) shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or action, order or decree of any court, arbitrator or governmental or regulatory authority, otherwise than as set forth or contemplated in the most recent Preliminary Prospectus, and (ii) shall have incurred, since the date of this Agreement, any liabilities or obligations, direct or contingent, or entered into any transactions, not in the ordinary course of business, which are material to the Company and its subsidiaries taken as a whole, and there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries taken as a whole or any change, or any development involving a prospective change, in or affecting the general affairs, management, business, financial position, stockholder’s equity, results of operations or prospects of the Company and its subsidiaries taken as a whole otherwise than as set forth or contemplated in the most recent Preliminary Prospectus, the effect of which, in any such case described in clause (i) or (ii) above is in the judgment of the Underwriters so material decree and adverse as to make it impracticable or inadvisable to proceed with the offering, sale or the delivery of the Notes on the terms and in the manner contemplated by this Agreement and the Prospectus.
(i) No Representative shall have advised the Company that the Registration Statement, the Pricing Disclosure Package or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact which in the opinion of counsel for the Underwriters is material or omits to state a fact which in the opinion of counsel for the Underwriters is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(j) No action shall have been taken and no statute, rule, regulation known or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Notes; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Notes.
(k) All corporate proceedings and other legal matters incident to such the authorization, form and validity of the Indenture and this Agreement and the transactions contemplated hereby shall be reasonably satisfactory to counsel to the Underwriters, and prior to the Closing Date, the Company shall have furnished to the Representatives such other customary information, certificates and documents as they may reasonably request.
(l) The Company and Trustee shall have entered into the supplemental indenture relating to the Notes, and the Representatives shall have received counterparts, conformed as executed thereof, and the Notes shall have been duly executed and delivered by the Company and authenticated by the Trustee. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be applicable satisfactory in form and substance to the Representatives and their counsel, 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 of any U.S. federal in writing, or California by telephone or Delaware court,facsimile transmission confirmed in writing.
Appears in 2 contracts
Sources: Underwriting Agreement (Xcel Energy Inc), Underwriting Agreement (Xcel Energy Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of and any document incorporated by reference therein) and as of the Closing Datesettlement date pursuant to Section 3 hereof, to the accuracy in all material respects of the statements of the Company and the Selling Stockholders made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, or and any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, Statement or any notice that would prevent objecting to its use, as amended from time to time, use shall have been issued issued, and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives:
(i) the opinion of the General Counselrequested and caused Fish & ▇▇▇▇▇▇▇▇▇▇ P.C., an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing DateDate and addressed to the Representatives, substantially to the effect that:
(Ai) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened by the SEC and the Registration Statement and the Prospectus (other than the financial statements and other financial or accounting data contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder (except counsel expresses no statement or belief as to Regulation S-T); to the knowledge of such counsel, there are no documents that are required to be filed as exhibits to the Registration Statement that are not so filed or any documents that are required to be summarized in the Preliminary Prospectus or the Prospectus that are not so summarized; and such counsel has no reason to believe that on the Effective Date the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial or accounting data contained therein, as to which such counsel need express no opinion);
(ii) such counsel has no reason to believe that the Disclosure Package, as amended or supplemented at the Execution Time, and the price to the public, the number of Underwritten Securities and the number of Option Securities to be included on the cover page of the Prospectus, when taken together as a whole, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than the financial statements and other financial or accounting data contained therein, as to which such counsel need express no opinion);
(iii) each of the Company and Alternative Energy Resources, Inc., Clean Power Markets, Inc., Comverge Energy Management, Inc., Comverge Energy Partners, Ltd., Comverge Giants, Inc., Comverge Utah, Inc., Enerwise Global Technologies, Inc. PES NY, LLC, Public Electric, Inc., Public Energy Solutions, LLC, Public Energy Solutions NY, LLC and 6D Comverge, Inc. (individually a “Subsidiary and collectively the “Subsidiaries”) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delawarejurisdiction in which it is chartered or organized, with full the 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 Final Prospectus as amended or supplementedthe Prospectus, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken is duly qualified to do business as a wholeforeign corporation and is in good standing under the laws of each jurisdiction which requires such qualification as set forth on Schedule V;
(iv) all the issued and outstanding equity interests of Alternative Energy Resources, Inc., Comverge Energy Management, Inc., Comverge Energy Partners, Ltd., Comverge Giants, Inc., Enerwise Global Technologies, Inc. and 6D Comverge, Inc. have been duly authorized and validly issued and are fully paid and nonassessable and are owned of record by the Company or by one of the Company’s wholly owned subsidiaries (except to the extent that such nonassessability may be affected by Section 153.112 of the Texas Business Organizations Code); and, except as set forth in the Disclosure Package and the Prospectus, the Company or such wholly owned subsidiary owns such equity interests free and clear of all Liens (A) in respect of which a financing statement under the Delaware Uniform Commercial Code or the Texas Uniform Commercial Code, as applicable, naming the owner of the equity interests of such Subsidiary as debtor is on file as of a recent date in the office of the Secretary of State of the State of Delaware or the Secretary of State of the State of Texas, as applicable, or (B) insofar otherwise known to such counsel after due inquiry;
(v) the Company’s authorized equity capitalization is as set forth in the statements Disclosure Package and the Prospectus; the capital stock of the Company consists of 150,000,000 shares of Common Stock and 15,000,000 shares of preferred stock, par value $0.001 per share (the “Preferred Stock”), and such capital stock (including the shares of Common Stock owned by the Selling Stockholders) conforms as to legal matters to the description thereof contained in the Disclosure Package, Package and the statements contained in the Final Prospectus under the caption heading “Description of Capital Stock;” the Global Notes” outstanding shares of Common Stock (including the Securities being sold hereunder by the Selling Stockholders) have been duly and validly authorized and issued and are fully paid and nonassessable, immediately after giving effect to the statements contained in the Base Prospectus under the caption “Description consummation of the Debt Securities” purport to describe specific provisions issuance and sale of the Securities or pursuant to this Agreement and no shares of Preferred Stock will be issued and outstanding; the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) the Indenture has been duly authorized, executed and delivered Securities being sold hereunder by the Company, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law); and the Securities have been duly authorized and validly authorized, and, when executed and authenticated in accordance with the provisions of the Indenture issued and delivered to and paid for by the Underwriters in accordance with the terms of pursuant to this Agreement, will be legalfully paid and nonassessable; the Securities being sold by the Company and the Selling Stockholders are duly listed, and admitted and authorized for trading, on the Nasdaq Global Market, subject to official notice of issuance; the certificates for the Securities are in valid and binding obligations sufficient form; the holders of outstanding shares of capital stock of the Company enforceable against are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Disclosure Package and the Prospectus, to such counsel’s knowledge, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law)are outstanding;
(Dvi) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, there is no stop order suspending pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the effectiveness Company or any of its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Preliminary Prospectus and the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Preliminary Prospectus and the Prospectus under the headings “Material U.S. Federal Tax Consequences for Non-U.S. Holders of Common Stock,” “Risk Factors—If we are unable to protect our intellectual property, our business and results of operations could be negatively affected,” “Risk Factors—We may be subject to damaging and disruptive intellectual property litigation related to allegations that our products or services infringe on intellectual property held by others, which could result in the loss of use of the product or service,” “Description of Capital Stock,” “Underwriting,” “Shares Eligible for Future Sale,” and Item 14 in the Registration StatementStatement insofar as such statements summarize legal matters, as amendedagreements, documents or any notice that would prevent its use has been issued proceedings discussed therein, are accurate and no proceedings for that purpose have been instituted fair summaries of such legal matters, agreements, documents or are pending or contemplated under the Actproceedings;
(Evii) this Agreement has been duly authorized, executed and delivered by the Company;
(Fviii) 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 Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(ix) no consent, approval, authorization, approval filing with or other action by, and no notice to, consent of, order of, of any court or filing with, any U.S. federal governmental agency or California or Delaware governmental authority or agency body is required for the consummation of in connection with the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Preliminary Prospectus and the Prospectus and such other approvals (specified in such opinion) as have been obtained; and;
(Gx) none of neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated or nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or constitute a default underimposition of any Lien upon any property or assets of the Company or its subsidiaries pursuant to, (i) the charter or by-laws bylaws of the Company oror its subsidiaries, to such counsel’s knowledge, (ii) the terms of any Material Agreementsindenture, 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, in each case, that is filed as Exhibit 10.1 through 10.45 to the Registration Statement, or (iii) applicable laws of the United States of America, the State of New York, the State of Texas or the General Corporation Law of the State of Delaware or any material statute, rule, regulation, judgment, order or decree or regulation known to such counsel to be applicable to the Company or its subsidiaries of any U.S. 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; and
(xi) except as set forth in the Registration Rights Agreement, 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 jurisdiction other than the State of New York, the State of Texas, the General Corporation Law of the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Selling Stockholders shall have requested and caused Fish & ▇▇▇▇▇▇▇▇▇▇ P.C., and such other firm(s) as may be agreed by the Underwriters, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement has been duly authorized, executed and delivered by or on behalf of each Selling Stockholder;
(ii) the Custody Agreement and Power of Attorney of each Selling Stockholder has been duly authorized, executed and delivered by each Selling Stockholder and constitutes the legal, valid and binding obligation of such Selling Stockholder, enforceable against such Selling Stockholder in accordance with its terms, and such Selling Stockholder has the full legal right and authority to sell, transfer and deliver its shares of Common Stock in the manner provided by this Agreement, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification thereunder may be limited by federal or state securities laws or public policy relating thereto;
(iii) none of (i) the offering and sale by any of the Selling Stockholders of the Common Stock to be sold by such Selling Stockholders to the Underwriters pursuant to the terms of this Agreement or (ii) the execution and delivery of this Agreement by any of the Selling Stockholders, or the consummation of the transactions contemplated thereby by any of the Selling Stockholders, (A) constituted, constitutes or will constitute a violation of the charter, bylaws or other organizational documents of such Selling Stockholder or (B) resulted, results or will result in any violation of (i) the Delaware Revised Uniform Limited Partnership Act, (ii) the Delaware General Corporation Law, (iii) the Delaware Limited Liability Company Act, (iv) the applicable laws of the State of Texas, (v) the applicable laws of the State of New York, (vi) the applicable laws of the State of California (vii) the applicable laws of the United States of America or Delaware court,(viii) such other applicable laws applicable to such Selling Stockholder. None of (i) the offering and sale by any of the Selling Stockholders of the Common Stock to be sold by such Selling Stockholders to the Underwriters pursuant to the terms of this Agreement or (ii) the execution and delivery of this Agreement by any of the Selling Stockholders, or the consummation of the transactions contemplated thereby by any of the Selling Stockholders, (A) constituted, constitutes or will constitute a breach or violation of, or a default (or an event that, with notice or lapse of time or both, would constitute such a default) under, or conflict with, any Applicable Agreement (as defined in such opinion) or (B) resulted, results or will result in the contravention of any Applicable Order (as defined in such opinion);
(iv) upon payment for the Common Stock to be sold by the Selling Stockholders, delivery of such Common Stock, as directed by the Underwriters, to Cede & Co. or such other nominee as may be designated by the Depository Trust Company, registration of such Common Stock in the name of Cede & Co. or such other nominee and the crediting of such Common Stock on the books of the Depository Trust Company to “securities accounts” (within the meaning of Section 8-501(a) of the Uniform Commercial Code as in effect in the State of New York) of the Underwriters (assuming that neither the Depository Trust Company nor any such Un
Appears in 2 contracts
Sources: Underwriting Agreement (Comverge, Inc.), Underwriting Agreement (Comverge, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Province contained herein herein, both (i) on, and as of the Execution Timethough made on, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date hereof and (including the filing of any document incorporated by reference thereinii) on, and as of though made on, the Closing Date, to the accuracy in all material respects of the statements of the Company Province made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Province of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Final Prospectus, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required by Rule 433; and no No stop order suspending the effectiveness of the Registration Statement, or any notice that would prevent its use, as amended from time to time, or any part thereof, shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) of this Agreement; and the term sheet contemplated by Section 4(a) of this Agreement shall have been timely filed with the Commission pursuant to Rule 433(d) under the Act.
(b) The Company Representatives shall have furnished to the Representatives:
(i) the opinion of the General Counsel, received an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the Companyopinion, dated the Closing Date, substantially of the Minister of Justice and Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, the Director of Civil Legal Services, the Assistant Director of Civil Legal Services or a Crown Counsel of the Province of Manitoba, counsel for the Province, to the effect that:
(Ai) The Securities have been duly authorized, executed, issued and delivered in accordance with the Company laws of the Province of Manitoba, the Order or Orders of the Lieutenant Governor in Council of the Province applicable thereto and any laws of Canada applicable thereto and constitute valid and legally binding, direct and unconditional general obligations of the Province in accordance with their terms;
(ii) The Securities rank pari passu with all other debentures, bonds and notes constituting general obligations of the Province outstanding on the Closing Date;
(iii) All necessary action has been duly incorporated taken by or on behalf of the Province, and is validly existing as a corporation in good standing all necessary authorizations and approvals under the laws of the State Province of DelawareManitoba and under the laws of Canada have been duly obtained (or no such authorizations or approvals under the laws of Canada are necessary), with full corporate power for the authorization, execution and authority to own its properties and conduct its business as described in delivery by the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken as a wholeProvince of this Agreement;
(Biv) insofar as the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” This Agreement and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) the Indenture has Fiscal Agency Agreement have 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 obligation enforceable against the Company Province in accordance with its terms the laws of the Province of Manitoba, the Order or Orders of the Lieutenant Governor in Council of the Province applicable thereto and any laws of Canada applicable thereto (subject or there are no laws of Canada applicable thereto);
(v) There are no withholding or other income taxes or capital gains taxes payable under the laws of Canada or of the Province of Manitoba in respect of the Securities or the premium, if any, or the interest thereon by an owner who is not, and is not deemed to applicable bankruptcybe, insolvencya resident of Canada and who does not use or hold, fraudulent transferand who is not deemed to use or hold, reorganizationthe Securities in carrying on business in Canada, arrangementand no estate taxes or succession duties are presently imposed by Canada or the Province of Manitoba;
(vi) Such counsel has no reason to believe that either the Registration Statement or the Prospectus, moratorium or any amendment or supplement thereto, as of their respective dates and as of the Closing Date, or the Pricing Disclosure Package, as of the Applicable Time, 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; the opinion with respect to Canadian taxes under the caption “Description of Securities” in the Prospectus is accurately described therein; the descriptions in the Registration Statement and Prospectus of statutes, legal and governmental proceedings and contracts and other similar laws relating documents are accurate and fairly present the information required to be shown; and such counsel does not know of any legal or governmental proceedings required to be described in the Registration Statement or Prospectus which are not described as required, nor of any contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement which are not described and filed as required;
(vii) The execution and delivery by the Province of this Agreement and the Fiscal Agency Agreement, the creation, offering, issue and sale of the Securities and the performance by the Province of its obligations under this Agreement and the Fiscal Agency Agreement will not violate, conflict with or result in a breach of any indenture, agreement or other instrument to which the Province is a party or by which the Province is bound; and
(viii) No litigation or proceedings of any nature are now pending or threatened attacking or in any way attempting to restrain or enjoin the issue and delivery of the Securities or in any manner questioning the authority and proceedings under which the Securities are issued, or affecting the rights and remedies validity thereof, or contesting the title or official capacity of creditors generally from time any of the persons authorized by the applicable Order of the Lieutenant Governor in Council to time sign the Securities, or the authority of any of the persons authorized by said Order in effectCouncil to countersign the Securities under the designation “Authorized Signing Officer”, and subject to general principles no authority or proceedings for the issuance of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law); and the Securities have been duly authorized andmodified, when executed repealed, revoked or rescinded in whole or in part. In rendering such opinion, such counsel may rely upon the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP as to matters of United States law and authenticated procedure and need not express any opinion as to the financial statements or other financial data contained in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and the Prospectus.
(c) The Representatives shall have received from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, Canadian counsel to the Underwriters, given in respect of the laws of Manitoba and Canada, such opinion or opinions, dated the Closing Date, with respect to the validity of the Securities, the Registration Statement, the Pricing Disclosure Package, the Prospectus and other related matters as the Representatives may require, and the Province shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion or opinions, such counsel may rely upon the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP as to matters of United States law and procedure and need not express any amendments thereto opinion or belief as to the financial statements or other financial or statistical data contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(d) The Representatives shall have become effective received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, United States counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the validity of the Securities, the Registration Statement, the Pricing Disclosure Package, the Prospectus and other related matters as the Representatives may require, and the Province shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion or opinions, such counsel may rely upon the opinions of counsel named in paragraphs (b) and (c) of this Section as to matters of Canadian and Manitoba law and procedure, and need not express any opinion or belief as to the financial statements or other financial or statistical data contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(e) Subsequent to the execution and delivery of this Agreement and on or prior to the Closing Date, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the condition (financial or other) of the Province which, in the judgment of a majority in interest of the Underwriters, including any Representatives, materially impairs the investment quality of the Securities; or (ii) any downgrading in the rating of the Province’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act; any required filing ).
(f) The Representatives shall have received a certificate, dated the Closing Date, of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus Minister of Finance or the Final ProspectusDeputy Minister of Finance, and any supplements theretothe Assistant Deputy Minister of Finance — Treasury Division or Director of Capital Markets, pursuant to Rule 424(b) or Rule 433 has been made of the Province of Manitoba in the manner and within the time period required by Rule 424(b) or Rule 433which such official, as the case may be; to the best knowledge of such counselperson’s knowledge after reasonable investigation, shall state that the representations and warranties of the Province in this Agreement are true and correct, the Province has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement, as amended, Statement or any notice that would prevent its use part thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under by the Act;Commission.
(Eg) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture Act and such as may be required under the blue sky laws of any jurisdiction in connection with the The purchase and distribution of the Securities and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the SecuritiesSecurities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the consummation United States of any other America, the Province of the transactions herein contemplated Manitoba or the fulfillment State of New York.
(h) The Province shall have furnished to the terms hereof will conflict with, result in a breach of, Representatives or constitute a default under, their counsel such further certificates and documents as the charter Representatives or by-laws of the Company or, to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to request. All such opinions, certificates and documents will be applicable in compliance with the provisions hereof only if they are satisfactory to the Company Underwriters or the Representatives and to ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Underwriters. The Province will furnish the Representatives with such conformed copies of any U.S. federal or California or Delaware court,such opinions, certificates, letters and documents as they reasonably request.
Appears in 2 contracts
Sources: Underwriting Agreement (Province of Manitoba), Underwriting Agreement (Province of Manitoba)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Underwritten Shares and the Option Shares, as the case may be, shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein in this Underwriting Agreement as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of Pre-funding Time, the Closing Date, the Settlement Date and the Option Closing Date, if any, pursuant to Section 3 hereof, to the accuracy in all material respects of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder under this Underwriting Agreement and to the following additional conditions:
(a) The Final Prospectus, or and any supplement thereto, shall have been filed in the manner and within the time period required under by Rule 424(b), and ; any Issuer Free Writing Prospectus material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed in with the manner and Commission within the applicable time period required periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, Statement or the ADR Registration Statement or any notice objecting to their use shall have been issued and no proceedings for that would prevent purpose shall have been instituted or threatened, and the Folleto has been filed in the manner and within the time period established by the Spanish Act as developed by secondary legislation and no stop order suspending the effectiveness of the Folleto or any notice objecting to its use, as amended from time to time, use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) KPMG Auditores, S.L. (“KPMG”) has issued by not later than 11:59 p.m. (Madrid time) on the date hereof its special report for the purposes of articles 308 and 506 of the Spanish Capital Companies Act confirming that the Purchase Price is at a “fair value” and that the figures contained in the report of the Board of Directors of the Company on the capital increase relating to the Offered Shares are, in their view, reasonable and take into account the value of the pre-emptive subscription rights of the shareholders of the Company that will be excluded with respect to the capital increase relating to the Offered Shares.
(c) The Company shall have requested and caused DLA Piper Spain, S.L.U. and DLA Piper LLP (US), counsel for the Company with respect to Spanish and U.S. law, respectively, to have furnished to the Representatives their opinion or opinions, as the case may be, dated the Closing Date and addressed to the Representatives:, to the effect that (subject to assumptions and qualifications reasonably acceptable to the Representatives):
(i) the opinion Registration Statement and the ADR Registration Statement have become effective under the Act; any required filing of the General CounselProspectus, an Associate General Counsel or a Deputy General Counsel and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the CompanyRegistration Statement or the ADR Registration Statement or any notice objecting to their use has been issued, no proceedings for that purpose have been instituted or an outside threatened, and the Registration Statement and the ADR Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel for need express no opinion) comply as to form in all material respects with the Company, dated applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended the Registration Statement or the ADR Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus as of the date thereof and on the Closing DateDate 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, substantially 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);
(ii) such counsel has no reason to believe that the Disclosure Package, as amended or supplemented at the Execution Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion);
(iii) the Documento de Registro was approved and registered by the CNMV pursuant to the effect that:Spanish Act on July 12, 2012, the Company filed with the CNMV the Relevant Fact Notice on the details of the Offering on [·]; to the knowledge of such counsel, no stop order suspending the effectiveness of the Documento de Registro has been issued, no proceedings for that purpose have been instituted or threatened and the Folleto (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Spanish Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Folleto was last deemed amended the Spanish Documents 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 Folleto as of the date thereof and on the Closing Date included or include any untrue statement of a material fact or omitted or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (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);
(Aiv) each of the Company and the Specified Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delawarejurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package Package, the Prospectus and Final Prospectus the Documento de Registro, and is duly qualified to do business as amended or supplemented, a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification except where such the failure to be so qualified or in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a wholeMaterial Adverse Effect;
(Bv) insofar each of the Lock-Up Agreement Signatories (as hereinafter defined) that is a corporate entity has been duly incorporated and is validly existing as a [corporation] in good standing under the statements laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to enter into the Lock-Up Agreement, and each of the Lock-Up Agreement Signatories that is an individual has due authority to enter into the Lock-Up Agreement;
(vi) all the outstanding shares of capital stock of each Specified Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Disclosure Package and the Prospectus, all outstanding shares of capital stock of each such Specified Subsidiary are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest or, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(vii) the Company’s authorized share capital is as set forth in the Disclosure Package, the Prospectus and the Spanish Documents; the capital stock of the Company conforms in all material respects to the description thereof contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in Spanish Documents; the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) the Indenture has been duly authorized, executed outstanding Class A Shares and delivered by the Company, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law); and the Securities Class B Shares have been duly and validly authorized and issued and are fully paid and nonassessable; the Offered Shares being sold under this Underwriting Agreement by the Company have been duly and validly authorized, and, when executed and authenticated in accordance with the provisions of the Indenture issued and delivered to and paid for by the Underwriters pursuant to this Underwriting Agreement, and when the capital increase relating to the Offered Shares has been duly registered with the Mercantile Registry and the Offered Shares have been duly registered with Iberclear, the Offered Shares will be fully paid and nonassessable; the ADSs being sold under the Underwriting Agreement by the Company are duly authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq Global Select Market and application has been made for the Offered Shares to be duly admitted to listing on each of the Madrid and Barcelona Stock Exchanges and authorized for trading on the SIB; the Offered Shares will conform in all material respects to the description thereof contained in the Registration Statement, the ADR Registration Statement, the Disclosure Package, the Prospectus and the Spanish Documents; the holders of outstanding shares of capital stock of the Company and of bonds convertible into Class A Shares or Class B Shares of the Company are not entitled to preemptive or other rights to subscribe for the Offered Shares other than those as have been duly excluded in accordance with Spanish law; and, except as set forth in the terms Disclosure Package and the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of this Agreement, will be legal, valid and binding obligations capital stock of or ownership interests in the Company enforceable against are outstanding and there are no commitments by the Company to create, issue, sell or otherwise dispose of, shares of capital stock of or ownership interests in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law)Company;
(Dviii) the Registration Statement insofar as matters of Spanish law, United States Federal law and any amendments thereto have become effective under the Act; any required filing of the Base ProspectusNew York State law are concerned, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, there is no stop order suspending pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the effectiveness Company or any of its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement, as amendedthe ADR Registration Statement or the Spanish Documents which is not adequately disclosed in the Disclosure Package, the Prospectus and the Spanish Documents, and there is no franchise, contract or other document of a character required to be described in the Registration Statement, the ADR Registration Statement, the Disclosure Package, the Prospectus or the Spanish Documents, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted to be filed as an exhibit thereto, which is not described or are pending or contemplated filed as required; the descriptions contained in the Prospectus under the Actheading “Taxation,” insofar as such statements summarize legal conclusions applicable to the offering of the Class B Shares and ADSs, constitute fair and accurate summaries of such legal matters; and the statements in the Prospectus under the headings “Business—Intellectual Property,” “Business—Information Technology,” “Business—Legal Proceedings,” “Regulation,” “Description of Share Capital,” “Description of the Share Lending Arrangements” and “Description of American Depositary Shares” in the Documento de Registro (as of its date) in Sections 2, 5.2, 6, 8, 10, 11, 19, 20, 21 and 22, and in the Nota sobre las Acciones (as of its date) in Sections 3.3, 4, 5, 6, 7.3, 10.2, 10.3, 11.1 and 11.3, 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;
(Eix) this Underwriting Agreement has been duly authorized, executed and delivered by the Company;
(Fx) the agency agreement entered into by the Company with [·] (the “Agency Agreement”) has been duly authorized, executed and delivered by the Company and the obligations assumed thereunder by the Company are legal, valid, binding and enforceable obligations of the Company;
(xi) the Stock Loan Agreement has been duly authorized, executed and delivered by Inversión Corporativa IC, S.A. and the obligations assumed thereunder by Inversión Corporativa IC, S.A. are legal, valid, binding and enforceable obligations of Inversión Corporativa IC, S.A.;
(xii) the Lock-Up Agreements have been duly authorized, executed and delivered by the Lock-Up Agreement Signatories;
(xiii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(xiv) no consent, approval, authorization, approval filing with or other action byorder of any Spanish, and no notice to, consent of, order of, U.S. Federal or filing with, any U.S. federal New York court or California governmental agency or Delaware governmental authority or agency body is required for the consummation of in connection with the transactions contemplated hereinin the Underwriting Agreement, in the Deposit Agreement or in the Stock Loan Agreement, except (A) such as have been obtained under the Act, the Exchange Act and the Trust Indenture Act and Spanish Capital Companies Act, (B) such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities Offered Shares by the Underwriters in the manner contemplated in this Underwriting Agreement, in the Disclosure Package and the Prospectus, (C) the registration of the Nota sobre las Acciones and complementary documentation with the CNMV, (D) the formalization of the capital increase by means of a public deed granted before a Spanish notary public, the filing by the Company with the relevant Spanish tax authorities as exempt from capital tax (Impuesto sobre Transmisiones Patrimoniales y Actos Jurídicos Documentados en su modalidad de Operaciones Societarias) and the registration of such other approvals public deed with the Mercantile Registry, (specified in such opinionE) as have been obtained; andthe registration of the Offered Shares with Iberclear and the verification of the listing of the Offered Shares by the CNMV, (F) the approval of the listing of the Offered Shares by the relevant managing entities (Sociedades Rectoras) of each of the Madrid and Barcelona Stock Exchanges, and (G) the approval of the admission of the Offered Shares to trading through the SIB by the CNMV;
(Gxv) none of the issue and sale of the SecuritiesOffered Shares, the consummation of any other of the transactions herein contemplated herein, in the Deposit Agreement or in the Stock Loan Agreement and the fulfillment of the terms hereof hereof, of the Deposit Agreement or of the Stock Loan Agreement, will conflict with, result in a breach or violation of, or constitute a default underimposition of any lien, charge or encumbrance upon any property or assets of the Company or its subsidiaries pursuant to, (A) the charter or by-laws of the Company oror its subsidiaries, to such counsel’s knowledge, (B) the terms of any Material Agreementsindenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument [identified on the annexed schedule] to which the Company or its subsidiaries is a party or bound or to which its or their property is subject, or (C) any material Spanish, U.S. Federal or New York state statute, law, rule, regulation, judgment, order or decree or regulation known to such counsel to be applicable to the Company or its subsidiaries of any Spanish, U.S. federal Federal or California New York court, regulatory body, administrative agency, governmental body, arbitrator or Delaware court,other authority having jurisdiction over the Company or its subsidiaries or any of its or their properties;
(xvi) no holders of securities of the Company have rights to the registration of such securities under the Registration Statement or the ADR Registration Statement;
(xvii) the Deposit Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to a
Appears in 2 contracts
Sources: Underwriting Agreement (Abengoa Sa), Underwriting Agreement (Abengoa Sa)
Conditions to the Obligations of the Underwriters. The obligations of the several Underwriters to purchase the Securities under this Agreement shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained Company, the Principal Shareholder and the Selling Shareholders herein as of the Execution Time, set forth as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) hereof and as of the each Closing Date, to the accuracy in all material respects of the statements of the Company Company's officers, the Selling Shareholders and the Attorneys-in-Fact on behalf of the Selling Shareholders made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company and the Selling Shareholders of its their respective obligations hereunder hereunder, and to the following additional conditions, unless waived in writing by the Representatives:
(a) The Final Prospectus, or any supplement thereto, Registration Statement shall have been filed in declared effective by the manner and within Commission not later than 5:30 p.m., Washington, D. C. time, on the date of this Agreement, or such later time period required under Rule 424(b), and any Issuer Free Writing Prospectus as shall have been filed consented to by the Representatives, which consent shall be deemed to have been given if the Registration Statement shall have been declared effective on or before the date and time requested in the manner and within acceleration request submitted on behalf of the time period Representatives pursuant to Rule 461 under the Act; all filings required by Rule 433Rules 424(b) and 430A under the Act shall have been timely made; and no stop order suspending the effectiveness of the Registration Statement shall have been issued by the Commission or any state securities commission nor, to the knowledge of the Company or the Principal Shareholders, shall any proceedings for that purpose have been initiated or threatened; and any request of the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or any notice that would prevent its use, as amended from time to timeotherwise, shall have been issued and no proceedings for that purpose shall have been instituted or threatenedcomplied with to the reasonable satisfaction of the Representatives.
(b) The Company shall have furnished to Since the Representativesdates as of which information is given in the Registration Statement:
(i) there shall not have occurred any change or development involving, or which could be expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business; and
(ii) the Company shall not have sustained any material loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree, 20 the effect of which on the Company, in any such case described in clause (i) or (ii) above, is in the opinion of the General Counsel, an Associate General Counsel Representatives so material and adverse as to make it impracticable or a Deputy General Counsel inadvisable to proceed with the public offering or the delivery of the CompanyShares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(c) The Representatives shall not have advised the Company that the Registration Statement or the Prospectus contains an untrue statement of fact that, in the opinion of the Representatives or counsel for the Underwriters, is material, or omits to state a fact that, in the opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(d) The Representatives shall have received an outside opinion of ▇▇▇▇▇ & Stant, P.C., counsel for the Company, addressed to the Representatives, as the representatives of the Underwriters, and dated the First Closing Date or the Second Closing Date, substantially as the case may be, to the effect that:
(Ai) the The Company has been duly incorporated and is validly existing as a corporation and in good standing under the laws of the State its jurisdiction of Delawareincorporation, with full corporate power and authority to own own, lease and operate its properties and conduct its business as presently conducted and as described in the Disclosure Package Prospectus and Final Prospectus the Registration Statement; the Company is duly registered and qualified to do business as amended a foreign corporation under the laws of, and is in good standing as such in, each jurisdiction in which such registration or supplementedqualification is required, except where such the failure to so register or qualify would not have a material adverse effect on the Company and its subsidiaries, taken as a wholeMaterial Adverse Effect;
(Bii) insofar The authorized capital stock of the Company consists of 50,000,000 shares of Common Stock, par value $.01 per share, and 1,000,000 shares of Preferred Stock, par value $.01 per share, and all such stock conforms as to legal matters to the statements contained descriptions thereof in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisionsRegistration Statement;
(Ciii) The issued and outstanding shares of capital stock of the Indenture has been duly authorized, executed Company immediately prior to the issuance and delivered sale of the Shares to be sold by the Company, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law); and the Securities hereunder have been duly authorized andand validly issued, are fully paid and nonassessable, and there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company, and to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights;
(iv) The Company has no subsidiaries, and the Company does not own any equity interest in or control, directly or indirectly, any other corporation, limited liability company, partnership, joint venture, association, trust or other business organization except as described in the Prospectus and the Registration Statement;
(v) The certificates for the Shares to be delivered hereunder are in due and proper form and conform to the requirements of applicable law; and when executed duly countersigned by the Company's transfer agent, and authenticated delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, the Shares to be sold by the Company represented thereby will be legalduly authorized and validly issued, valid fully paid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effectnonassessable, and subject free of any preemptive, preferential or other rights to general principles subscribe for or purchase shares of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law)Common Stock;
(Dvi) the The Registration Statement and any amendments thereto have has become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use Statement has been issued and no proceedings for that purpose have been instituted initiated or are threatened under the Act or any Blue Sky Laws; the Registration Statement and the Prospectus and any amendment or supplement thereto (except for the financial statements and other statistical or financial data included therein as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; no facts have come to the attention of such counsel which lead it to believe that either the Registration Statement or the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omitted or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of the First Closing Date or the Second Closing Date, as the case may be, contained any untrue statement of a material fact or omitted or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they were made (except for the financial statements and other financial data included therein as to which such counsel need express no opinion); to such counsel's knowledge, (x) there are no legal or governmental proceedings pending or contemplated under threatened, including, without limitation, any such proceedings that are related to environmental or employment discrimination matters, required to be described in the Registration Statement or the Prospectus which are not so described or which question the validity of this Agreement or any action taken or to be taken pursuant thereto, (y) nor is there any transaction, relationship, agreement, 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 to or incorporated by reference in the Registration Statement by the Act, which is not described as required;
(Evii) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly authorized, executed and delivered by and on behalf of the Company;
(F) no authorization, approval and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution may be limited by applicable law and except as enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other action byequitable relief and rights to indemnification and contribution may be limited by state or federal securities laws or the policies underlying such laws; no consent, and no notice toapproval, consent ofauthorization or other order or decree of any court, order ofregulatory or governmental body, arbitrator, administrative agency or filing with, any U.S. federal other instrumentality of the United States or California other country or Delaware governmental authority or agency jurisdiction having jurisdiction over the Company is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated herein, by this Agreement (except such as have been obtained under for compliance with the Act, the Exchange Act Act, applicable Blue Sky Laws and the Trust Indenture Act clearance of the underwriting arrangements by the NASD);
(viii) The execution, delivery and such as may be required under performance of this Agreement by the blue sky Company will not: (A) violate any provisions of the Articles of Incorporation or By-laws of the Company; (B) violate any jurisdiction in connection with the purchase and distribution of the Securities and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securitiesprovisions of, the consummation of any other of the transactions herein contemplated or the fulfillment of the terms hereof will conflict with, result in a breach the breach, modification or termination of, or constitute a default under, the charter any material agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or by-laws of other material instrument to which the Company or, to such counsel’s knowledge, is a party or by which the terms of any Material AgreementsCompany, or any material of its owned or leased property is bound, and which is filed as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation known to of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States or other country or jurisdiction having jurisdiction over the Company (assuming compliance with all applicable federal and state securities laws); (ix) To such counsel to be applicable counsel's knowledge, except as described in the Prospectus, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the Company registration of such securities under the Act or any U.S. federal or California or Delaware court,Blue Sky Laws;
Appears in 2 contracts
Sources: Underwriting Agreement (Metro Information Services Inc), Underwriting Agreement (Metro Information Services Inc)
Conditions to the Obligations of the Underwriters. The several obligations of the Underwriters to purchase the Securities shall be Firm Units and the Option Units, as the case may be, hereunder are subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date, to the accuracy in all material respects of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, or any supplement thereto, All filings required by Rule 424 and Rule 430B of the Rules and Regulations shall have been made. All material required to be filed by the Partnership pursuant to Rule 433(d) under the Securities Act shall have been filed in with the manner and Commission within the applicable time period required prescribed for such filing by Rule 433 under Rule 424(b)the Securities Act. No stop order (i) suspending the effectiveness of the Registration Statement or (ii) suspending or preventing the use of the most recent Preliminary Prospectus, and the Prospectus or any Issuer Free Writing Prospectus 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, or any notice that would prevent its use, as amended from time to time, shall have been issued and no proceedings proceeding for that purpose shall have been instituted or, to the knowledge of the Partnership or threatenedany Underwriter, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representatives.
(b) The Company shall have furnished Subsequent to the Representatives:
Applicable Time, there shall not have occurred (i) any change, or any development involving a prospective change that would reasonably be expected to have a Material Adverse Effect, not contemplated by the Prospectus, which in the Representatives’ opinion, would materially adversely affect the market for the Units, or (ii) any event or development relating to or involving any of the Plains Entities or any executive officer or director of any of such entities that makes any statement made in the Prospectus untrue or which, in the opinion of the General CounselPartnership and its counsel or the Underwriters and their counsel, requires the making of any addition to or change in the Prospectus in order to state a material fact required by the Securities Act or any other law 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, if amending or supplementing the Prospectus to reflect such event or development would, in the Representatives’ opinion, materially adversely affect the market for the Units.
(c) The Representatives shall have received on each applicable Delivery Date, an Associate General Counsel or a Deputy General Counsel opinion of the Company▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., or an outside counsel for the CompanyPartnership, dated the Closing Dateapplicable Delivery Date and addressed to the Underwriters, substantially to the effect that:
(Ai) Each of the Company Partnership, the GP Entities and the Domestic Subsidiaries has been duly formed or incorporated and is validly existing as a corporation in good standing as a limited partnership, limited liability company or corporation under the laws of its respective jurisdiction of formation or incorporation with full corporate, limited partnership or limited liability company power and authority, as the case may be, to own or lease its properties and to conduct its business, in each case in all material respects.
(ii) Each Domestic Subsidiary or GP Entity that serves as a general partner of another Domestic Subsidiary or GP Entity has full corporate or limited liability company power and authority, as the case may be, to serve as general partner of such Domestic Subsidiary or GP Entity, in each case in all material respects.
(iii) The GP Entities hold the general partner and membership interests described in the Registration Statement; all of such interests have been duly authorized and validly issued in accordance with their respective limited partnership or limited liability company agreement, as applicable, and all the membership interests in the General Partner are fully paid (to the extent required under the General Partner LLC Agreement) and nonassessable (except as such assessability may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act).
(iv) All of the outstanding shares of capital stock or other equity interests (other than general partner interests) of each Domestic Subsidiary (a) have been duly authorized and validly issued (in the case of an interest in a limited partnership or limited liability company, in accordance with the Organizational Documents of such Domestic Subsidiary), are fully paid (in the case of an interest in a limited partnership or limited liability company, to the extent required under the Organizational Documents of such Domestic Subsidiary) and nonassessable (except (i) in the case of an interest in a Delaware limited partnership or Delaware limited liability company, as such nonassessability may be affected by Sections 17-607 and 17-804 of the Delaware LP Act or Sections 18-607 and 18-804 of the Delaware LLC Act, as applicable, (ii) in the case of an interest in a limited partnership or limited liability company formed under the laws of another domestic state, as such nonassessability may be affected by similar provisions of such state’s limited partnership or limited liability company statute, as applicable) and (b) except for the portion of the limited partnership interest in PNG held by public investors, are owned, directly or indirectly, by the Partnership, free and clear of all Liens (A) in respect of which a financing statement under the Uniform Commercial Code of the States of Delaware or Texas naming the Partnership as debtor or, in the case of capital stock or other equity interests of a Domestic Subsidiary owned directly by one or more other Domestic Subsidiary, naming any such other Domestic Subsidiary as debtor(s), is on file in the office of the Secretary of State of Delawarethe States of Delaware or Texas or (B) otherwise known to such counsel, without independent investigation, other than those created by or arising under the corporate, limited liability company or partnership laws of the jurisdiction of formation or incorporation of the respective Domestic Subsidiary, as the case may be.
(v) All outstanding general partner interests in each Domestic Subsidiary that is a partnership have been duly authorized and validly issued in accordance with full corporate the Organizational Documents of such Domestic Subsidiary and are owned, directly or indirectly, by the Partnership, free and clear of all Liens (A) in respect of which a financing statement under the Uniform Commercial Code of the States of Delaware or Texas naming the Partnership as debtor or, in the case of general partner interests of a Domestic Subsidiary owned directly by one or more other Domestic Subsidiary, naming any such other Domestic Subsidiary as debtor(s), is on file in the office of the Secretary of State of the States of Delaware or Texas or (B) otherwise known to such counsel, without independent investigation, other than those created by or arising under the partnership laws of the jurisdiction of formation of the respective Domestic Subsidiary, as the case may be.
(vi) The Firm Units (and/or Option Units, as applicable) to be issued and sold to the Underwriters by the Partnership pursuant to this Agreement and the limited partner interests represented thereby have been duly authorized by the Partnership Agreement and, when issued and delivered against payment therefor as provided in this Agreement, will be validly issued, fully paid (to the extent required under the Partnership Agreement) and nonassessable (except as such nonassessability may be affected by Sections 17-607 and 17-804 of the Delaware LP Act).
(vii) Except as have been waived or satisfied, there are no preemptive rights or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any interests in the Partnership pursuant to the Organizational Documents of the Partnership or any of the Incorporated Documents to which the Partnership is a party or by which the Partnership may be bound. Neither the filing of the Registration Statement nor the offering or sale of the Units as contemplated by this Agreement gives rise to any rights for or relating to the registration of any Units or other securities of the Partnership pursuant to any of the documents or agreements included as exhibits to any of the Incorporated Documents, except such rights as have been waived or satisfied. The Partnership has all requisite power and authority to own its properties issue, sell and conduct its business as described deliver the Units, in accordance with and upon the terms and conditions set forth in this Agreement, the Partnership Agreement and the Registration Statement, the Pricing Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;Prospectus.
(Bviii) insofar as This Agreement has been duly authorized and validly executed and delivered by the statements contained in the Disclosure PackagePartnership.
(ix) At or before each applicable Delivery Date, the statements contained in the Final Prospectus under the caption “Description partnership agreement or limited liability company agreement, as applicable, of each of the Global Notes” Partnership, the Domestic Subsidiaries and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) the Indenture GP Entities has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act, parties thereto and constitutes is a legal, valid and legally binding obligation agreement of such parties thereto, enforceable against the Company parties thereto in accordance with its terms their respective terms; provided, that, with respect to each such agreement, the enforceability thereof may be limited by (subject to A) applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other or similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, effect affecting creditors’ rights and subject to remedies generally and by general principles of equity, equity (regardless of whether such enforceability is principles are considered in a proceeding in equity or at law) and (B) public policy, applicable law relating to fiduciary duties and indemnification and an implied covenant of good faith and fair dealing.
(x) None of the offering, issuance and sale by the Partnership of the Units, the execution, delivery and performance of this Agreement by the Partnership or the consummation of the transactions contemplated by this Agreement (A) constitutes or will constitute a violation of the Organizational Documents of the Partnership or any of the Domestic Subsidiaries or the GP Entities, (B) conflicts or will conflict with or constitutes or will constitute a breach or violation of, a change of control or a default under (or an event that, with notice or lapse of time or both, would constitute such an event) any document or agreement filed as an exhibit to the Registration Statement, any Incorporated Document, the Credit Agreement dated January 3, 2008 (as amended, the “Plains AAP Facility”); , by and among Plains AAP, the lenders party thereto and Citibank, N.A., as Administrative Agent or the PNG Facility, (C) results or will result in any violation of the Delaware LP Act, the Delaware LLC Act, the Delaware General Corporation Law (the “DGCL”), the laws of the State of Texas or federal law, or (D) results or will result in the creation or imposition of any Lien upon any property or assets of any of the Partnership, the Domestic Subsidiaries or the GP Entities, which conflicts, breaches, violations or defaults in the case of clauses (B), (C) or (D) would reasonably be expected to have a Material Adverse Effect or materially impair the ability of the Partnership to consummate the transactions contemplated by this Agreement, it being understood that such counsel need not express an opinion in clause (C) of this paragraph (x) with respect to any securities or other anti-fraud law.
(xi) No consent, approval, authorization, filing with or order of any federal, Delaware or Texas court, governmental agency or body having jurisdiction over the Partnership, the GP Entities the Domestic Subsidiaries or any of their respective properties is required in connection with the transactions contemplated by this Agreement, the execution, delivery and performance of this Agreement by the Partnership and the Securities have been duly authorized andconsummation of the transactions contemplated by this Agreement, when executed except (A) such as may be required under the blue sky laws of any jurisdiction or the by-laws and authenticated rules of FINRA in accordance connection with the provisions of the Indenture purchase and delivered to and paid for distribution by the Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against Units in the Company manner contemplated herein and in accordance with their terms the Pricing Disclosure Package and the Prospectus (subject as to applicable bankruptcywhich such counsel need not express any opinion), insolvency(B) such that the failure to obtain would not reasonably be expected to have a Material Adverse Effect or materially impair the ability of the Partnership to consummate the transactions contemplated by this Agreement and (C) such other that have been obtained or taken and are in full force and effect.
(xii) The statements in the Registration Statement, fraudulent transferthe Pricing Disclosure Package and the Prospectus under the captions “Description of Our Common Units,” “Cash Distribution Policy” and “Description of Our Partnership Agreement,” insofar as they constitute descriptions of agreements or refer to statements of law or legal conclusions, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time are accurate in effectall material respects, and subject the Units, the Common Units and the Incentive Distribution Rights conform in all material respects to general principles of equitythe descriptions thereof contained in the Registration Statement, regardless of whether such enforceability is considered in a proceeding in equity or at law);the Pricing Disclosure Package and the Prospectus.
(Dxiii) The opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. that is filed as Exhibit 8.1 to the Registration Statement is confirmed and any amendments thereto have become the Underwriters may rely upon such opinion as if it were addressed to them.
(xiv) The Registration Statement became effective under the Act; any required Securities Act upon its filing of the Base Prospectuson October 14, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be2009; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under threatened by the Act;Commission; and any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by such Rule.
(Exv) this Agreement has been duly authorizedThe Registration Statement, executed the Pricing Disclosure Package and delivered by the Company;
Prospectus (F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required except for the consummation financial statements and the notes and the schedules thereto and the other financial information included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus, as to which such counsel need not express an opinion) comply as to form in all material respects with the requirements of the transactions contemplated herein, except such as have been obtained under the Act, Securities Act and the Exchange Act and the Trust Indenture Act rules and regulations promulgated thereunder.
(xvi) None of the Plains Entities is now, and after sale of the Units to be sold by the Partnership hereunder and application of the net proceeds from such sale as may be required described in the Pricing Disclosure Package and the Prospectus under the blue sky laws caption “Use of any jurisdiction in connection with the purchase and distribution of the Securities and such other approvals (specified in such opinion) as have been obtained; and
(G) Proceeds,” none of the issue Plains Entities will be, an “investment company” as such term is defined in the Investment Company Act. In addition, such counsel shall state that they have participated in conferences with officers and sale other representatives of GP LLC and the Partnership, representatives of the Securitiesindependent public accountants of GP LLC and the Partnership and the Underwriters’ representatives and counsel, at which the contents of the Registration Statement, the consummation of Pricing Disclosure Package and the Prospectus and related matters were discussed, and although such counsel has not independently verified, is not passing on, and is not assuming any other responsibility for the accuracy, completeness or fairness of the transactions herein contemplated or statements contained in, the fulfillment Registration Statement, the Pricing Disclosure Package and the Prospectus (except to the extent specified in opinion (xii above)), on the basis of the terms hereof will conflict withforegoing, result in a breach ofno facts have come to the attention of such counsel that lead them to believe that:
(A) the Registration Statement, or constitute a default under, the charter or by-laws as of the Company 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;
(B) the Pricing Disclosure Package, as of 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
(C) the Prospectus, as of its date and as of each applicable Delivery Date, included or includes an untrue statement of a material fact or omitted or omits to such counsel’s knowledgestate a material fact necessary in order to make the statements therein, in the terms light of any Material Agreementsthe circumstances under which they were made, or any material decree or regulation known to not misleading, it being understood that such counsel need not express any statement or belief with respect to be applicable to (i) the Company of any U.S. federal or California or Delaware court,financial statements and related schedules, including the
Appears in 2 contracts
Sources: Underwriting Agreement (Plains All American Pipeline Lp), Underwriting Agreement (Plains All American Pipeline Lp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Offered Notes shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein in this Underwriting Agreement as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) Time and as of the Closing Date, to the accuracy in all material respects of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder under this Underwriting Agreement and to the following additional conditions:
(a) The Final closing of the offering of the Offered Shares shall have occurred prior to or simultaneously with the closing of the offering of the Offered Notes.
(b) The Prospectus, or and any supplement thereto, shall have been filed in the manner and within the time period required under by Rule 424(b), and ; [the final term sheet contemplated by Section 5(b) hereto and] any Issuer Free Writing Prospectus [other] material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed in with the manner and Commission within the applicable time period required periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, Statement or the ADR Registration Statement or any notice objecting to their use shall have been issued and no proceedings for that would prevent purpose shall have been instituted or threatened, and the Folleto has been filed in the manner and within the time period established by the Spanish Act as developed by secondary legislation and no stop order suspending the effectiveness of the Folleto or any notice objecting to its use, as amended from time to time, use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(bc) KPMG Auditores, S.L. (“KPMG”) has issued by not later than 11:59 p.m. (Madrid time) on the date hereof its special report for the purposes of articles 417 and 511 of the Spanish Capital Companies Act confirming the fairness of the Offered Notes’ conversion ratio and its adjustment provisions and that the [figures] contained in the report of the Board of Directors of the Company on the terms of conversion are, in their view, reasonable.
(d) The Company shall have requested and caused DLA Piper Spain, S.L.U. and DLA Piper LLP (US), counsel for the Company with respect to Spanish and U.S. law, respectively, to have furnished to the Representatives their opinion or opinions, as the case may be, dated the Closing Date and addressed to the Representatives:, to the effect that (subject to assumptions and qualifications reasonably acceptable to the Representatives):
(i) the opinion Registration Statement and the ADR Registration Statement have become effective under the Act; any required filing of the General CounselProspectus, an Associate General Counsel or a Deputy General Counsel and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the CompanyRegistration Statement or the ADR Registration Statement or any notice objecting to their use has been issued, no proceedings for that purpose have been instituted or an outside threatened, and the Registration Statement and the ADR Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel for need express no opinion) comply as to form in all material respects with the Company, dated applicable requirements of the Act and the Trust Indenture Act and the respective rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended the Registration Statement or the ADR Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus as of the date thereof and on the Closing DateDate 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, substantially 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);
(ii) such counsel has no reason to believe that the Disclosure Package, as amended or supplemented at the Execution Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion);
(iii) the Documento de Registro was approved and registered by the CNMV pursuant to the effect that:Spanish Act on July 12, 2012, the Company filed with the CNMV the Relevant Fact Notice on the details of the Offering on [·], the Nota sobre las Acciones was approved and registered by the CNMV pursuant to the Spanish Act on [·]; to the knowledge of such counsel, no stop order suspending the effectiveness of the Folleto has been issued, no proceedings for that purpose have been instituted or threatened and the Folleto (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Spanish Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Folleto was last deemed amended the Spanish Documents 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 Folleto as of the date thereof and on the Closing Date included or include any untrue statement of a material fact or omitted or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (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);
(Aiv) each of the Company and the Specified Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delawarejurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package Package, the Prospectus and Final Prospectus the Documento de Registro (as amended or supplementedof its date), and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification except where such the failure to be so qualified or in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a wholeMaterial Adverse Effect;
(Bv) insofar to the best of our knowledge, the Company is not the subject of any bankruptcy or insolvency proceeding of any nature and no steps have been taken for its liquidation, dissolution, declaration of insolvency (“concurso”) or analogous circumstance under the laws of Spain and no liquidator, administrator, receiver or analogous person has been appointed over all or any of the assets of the Company;
(vi) each of the Lock-Up Agreement Signatories (as hereinafter defined) that is a corporate entity has been duly incorporated and is validly existing as a [corporation] in good standing under the statements laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to enter into the Lock-Up Agreement, and each of the Lock-Up Agreement Signatories that is an individual has due authority to enter into the Lock-Up Agreement;
(vii) all the outstanding shares of capital stock of each Specified Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Disclosure Package and the Prospectus, all outstanding shares of capital stock of each such Specified Subsidiary are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest or, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(viii) the Company’s authorized share capital is as set forth in the Disclosure Package, the Prospectus and the Spanish Documents; the capital stock of the Company conforms in all material respects to the description thereof contained in the Disclosure Package, the statements contained in Prospectus and the Final Prospectus under Spanish Documents; the caption “Description outstanding Class A Shares and Class B Shares have been duly and validly authorized and issued and are fully paid and nonassessable; the Underlying Shares issuable or deliverable upon conversion of the Global Notes” Offered Notes have been duly and the statements contained in the Base Prospectus under the caption “Description validly authorized and, when issued and/or delivered upon conversion of the Debt Securities” purport to describe specific provisions Offered Notes and, if any of the Securities or Underlying Shares are new Class B Shares, when the Indenturecapital increase relating to such new Class B Shares has been duly registered with the Mercantile Registry and such new Class B Shares have been duly registered with Iberclear, such statements present the Underlying Shares will be validly issued, fully paid and nonassessable; the Underlying Shares will conform in all material respects an accurate summary to the description of the Class B Shares contained in the Registration Statement, the ADR Registration Statement, the Disclosure Package, the Prospectus and the Spanish Documents; the Board of Directors of the Company has duly and validly adopted resolutions reserving the maximum number of Underlying Shares for issuance upon conversion of the Offered Notes, authorizing the application for listing of such provisionsUnderlying Shares on the Madrid and Barcelona Stock Exchanges and authorizing the application for listing of the related ADSs on the Nasdaq Global Select Market; the holders of outstanding shares of capital stock of the Company and of bonds convertible into Class A Shares or Class B Shares of the Company are not entitled to preemptive or other rights to subscribe for the Offered Notes or the Underlying Shares other than those as have been duly excluded in accordance with Spanish law; except as set forth in the Disclosure Package, the Prospectus and the Spanish Documents, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding and there are no commitments by the Company to create, issue, sell or otherwise dispose of, shares of capital stock of or ownership interests in the Company; there are no restrictions on the free transferability of the Underlying Shares set out in the constitutional documents of the Company or under Spanish law or regulation; there are no restrictions on subsequent transfers of the Underlying Shares; and, the Offered Notes have been approved for listing on the Nasdaq Global Select Market subject to official notice for issuance;
(Cix) the Indenture has been duly authorized, executed and delivered by the Companydelivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding obligation instrument enforceable against the Company in accordance with its terms (subject subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and or other similar laws relating to or affecting the creditors’ rights and remedies of creditors generally from time to time in effect, effect and subject to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether such enforceability is considered in a proceeding in equity or at law)) and the Offered Notes will be convertible into Class B Shares or ADSs, as applicable, in accordance with the terms of the Indenture; and the Securities Offered Notes have been duly and validly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of pursuant to this Underwriting Agreement, will be constitute legal, valid and binding obligations of the Company enforceable against entitled to the benefits of the Indenture; and the statements set forth under the headings “Description of the Notes,” “Description of American Depositary Shares” and “Description of Share Capital” in the Disclosure Package and the Final Prospectus, insofar as such statements purport to summarize certain provisions of the Offered Notes, the Indenture, the Class B Shares and the ADSs, provide a fair summary of such provisions;
(x) the Company’s obligations under the Offered Notes (other than to pay interest, including optionally outstanding payments as described in the Disclosure Package and the Prospectus) constitute direct, unsecured and subordinated obligations of the Company in accordance with their terms and the Offered Notes will rank at all times pari passu without any preference or priority among themselves and will (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally such exceptions as are from time to time mandatory under Spanish law) rank (a) senior in effectpriority only to the rights and claims against the Company of the holders of “junior securities;” (b) pari passu with the rights and claims against the Company of the holders of any “parity securities;” and (c) junior to the rights and claims against the Company of the Company’s “senior creditors,” each as defined under the caption “Description of the Notes—Ranking” in the Disclosure Package and the Prospectus. However, the Company’s obligations under the Offered Notes to pay interest, including “optionally outstanding payments” (as defined in the Disclosure Package and subject to general principles of equitythe Prospectus), regardless of whether such enforceability is considered in a proceeding in equity or at law)will be the Company’s unsecured, unsubordinated obligations and rank pari passu with all the Company’s other unsecured, unsubordinated obligations;
(Dxi) the Registration Statement insofar as matters of Spanish law, United States Federal law and any amendments thereto have become effective under the Act; any required filing of the Base ProspectusNew York State law are concerned, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, there is no stop order suspending pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the effectiveness Company or any of its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement, as amendedthe ADR Registration Statement or the Spanish Documents which is not adequately disclosed in the Disclosure Package, the Prospectus and the Spanish Documents, and there is no franchise, contract or other document of a character required to be described in the Registration Statement, the ADR Registration Statement, the Disclosure Package, the Prospectus or the Spanish Documents, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted to be filed as an exhibit thereto, which is not described or are pending or contemplated filed as required; the descriptions contained in the Prospectus under the Actheading “Taxation,” insofar as such statements summarize the legal conclusions applicable to the offering of the Offered Notes and the Underlying Shares, constitute fair and accurate summaries of such legal matters; and the statements in the Prospectus under the headings “Business—Intellectual Property,” “Business—Information Technology,” “Business—Legal Proceedings,” “Regulation,” “Description of Share Capital,” “Description of American Depositary Shares,” “Description of the Notes” and “Description of the Share Lending Agreements” in the Documento de Registro (as of its date) in Sections 2, 5.2, 6, 8, 10, 11, 19, 20, 21 and 22, and in the Nota sobre las Acciones (as of its date) in Sections 3.3, 4, 5, 6, 7.3, 10.2, 10.3, 11.1 and 11.3, 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;
(Exii) this Underwriting Agreement has been duly authorized, executed and delivered by the Company;
(Fxiii) no authorizationthe Stock Loan Agreements have been duly authorized, approval or other action byexecuted and delivered by the Company and the obligations assumed thereunder by the Company are legal, valid, binding and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation enforceable obligations of the transactions contemplated herein, except such as Company;
(xiv) the Lock-Up Agreements have been obtained under duly authorized, executed and delivered by the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; andLock-Up Agreement Signatories;
(Gxv) none of the issue Company is not and, after giving effect to the offering and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to be applicable to the Company of any U.S. federal or California or Delaware court,Securiti
Appears in 2 contracts
Sources: Underwriting Agreement (Abengoa Sa), Underwriting Agreement (Abengoa Sa)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company CI contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) Time and as of the Closing Date, to the accuracy in all material respects of the statements of the Company CI made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company CI of its obligations hereunder and to the following additional conditions:
(a) The Canadian Final ProspectusSupplement shall have been filed with the Qualifying Authority in the Province of Ontario pursuant to the Canadian Shelf Procedures within the applicable time period prescribed for such filing thereunder and the U.S. Final Prospectus shall have been filed with the Commission pursuant to General Instruction II.L. of Form F-10 within the applicable time period prescribed for such filing by the rules and regulations under the Act and, or in each case, in accordance with Section 5(a) hereof; and the final term sheet contemplated by Section 5(c) hereto, and any supplement theretoother material required to be filed by CI pursuant to Rule 433(d) under the Act, shall have been filed in with the manner and Commission within the applicable time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required periods prescribed for such filings by Rule 433; and 433; no stop order suspending the effectiveness of the Registration Statement, Statement or any notice that would prevent its use, as amended from time to time, part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or, to the knowledge of CI, threatened by the Commission; no order having the effect of preventing or threatened.suspending the use of any prospectus (including any Issuer Free Writing Prospectus) relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of CI, threatened by the Qualifying Authority in the Province of Ontario; and all requests for additional information on the part of the Qualifying Authority in the Province of Ontario and the Commission shall have been complied with to the Representatives’ reasonable satisfaction;
(b) CI shall have requested and caused Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Canadian counsel for CI, and Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, United States counsel for CI, to have furnished to the Representatives their opinions, dated the Closing Date and addressed to the Representatives, in substantially the forms attached hereto as Exhibit A-1 and Exhibit A-2. 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 CI and public officials.
(c) The Company Representatives shall have received from ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, United States 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 U.S. Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and CI shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) CI shall have furnished to the RepresentativesRepresentatives a certificate of CI, signed by the Chief Executive Officer or the Chief Financial Officer and the principal financial or accounting officer of CI, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Canadian Final Prospectus and the U.S. Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the opinion representations and warranties of CI in this Agreement are true and correct on and as of the General Counsel, an Associate General Counsel or a Deputy General Counsel of Closing Date with the Company, or an outside counsel for the Company, dated same effect as if made on the Closing Date, substantially Date and CI has complied with all the agreements and satisfied all the conditions to be performed or satisfied at or prior to the effect that:Closing Date;
(Aii) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(B) insofar as the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, Statement or any notice that would prevent objecting to its use has been issued and no proceedings for that purpose have been instituted or, to CI’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package, the Canadian Final Prospectus and the U.S. Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or are pending otherwise), prospects, earnings, business or properties of CI 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 under in the Act;Disclosure Package and the Canadian Final Prospectus and the U.S. Final Prospectus (exclusive of any supplement thereto).
(Ee) this Agreement has been duly authorizedCI shall have requested and caused Ernst & Young LLP to have furnished to the Representatives, executed at the Execution Time and at the Closing Date, letters, (which may refer to letters previously delivered by to one or more of the Company;Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, concerning the financial information with respect to CI set forth in the Disclosure Package, the U.S. Final Prospectus and the Canadian Final Prospectus.
(Ff) no authorizationSubsequent to the Execution Time or, approval if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) the Canadian Final Prospectus and the U.S. Final Prospectus (exclusive of any amendment or other action bysupplement thereto), and no notice to, consent of, order ofthere shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6; (ii) any change, or filing withany development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of CI and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package, the Canadian Final Prospectus and the U.S. Final Prospectus (exclusive of any U.S. federal amendment or California supplement thereto) the effect of which, in any case referred to in clause (i) or Delaware governmental authority or agency is required for (ii) above, is, in the consummation sole judgment of the transactions contemplated hereinRepresentatives, except such so material and adverse as have been obtained under the Act, the Exchange Act and the Trust Indenture Act and such as may be required under the blue sky laws of any jurisdiction in connection to make it impractical or inadvisable to proceed with the purchase and distribution offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereto), the Disclosure Package, the Canadian Final Prospectus and the U.S. Final Prospectus (exclusive of any amendment or supplement thereto); or (iii) any decrease in the rating of any of CI’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such other approvals rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(g) Prior to the Closing Date, CI 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 such opinion) as this Section 6 shall not have been obtained; and
(G) none fulfilled when and as provided in this Agreement, or if any of the issue opinions and sale 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 SecuritiesUnderwriters hereunder may be canceled at, or at any time prior to, the consummation Closing Date by the Representatives. Notice of any other of the transactions herein contemplated such cancellation shall be given to CI in writing or the fulfillment of the terms hereof will conflict with, result by telephone or facsimile confirmed in a breach of, or constitute a default under, the charter or by-laws of the Company or, to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to be applicable to the Company of any U.S. federal or California or Delaware court,writing.
Appears in 2 contracts
Sources: Underwriting Agreement (CI Financial Corp.), Underwriting Agreement (CI Financial Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Province contained herein herein, both (i) on, and as of the Execution Timethough made on, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date hereof and (including the filing of any document incorporated by reference thereinii) on, and as of though made on, the Closing Date, to the accuracy in all material respects of the statements of the Company Province made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Province of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Final Prospectus, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required by Rule 433; and no No stop order suspending the effectiveness of the Registration Statement, or any notice that would prevent its use, as amended from time to time, or any part thereof, shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) of this Agreement; and the term sheet contemplated by Section 4(a) of this Agreement shall have been timely filed with the Commission pursuant to Rule 433(d) under the Act.
(b) The Company Representatives shall have furnished to the Representatives:
(i) the opinion of the General Counsel, received an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the Companyopinion, dated the Closing Date, substantially of the Minister of Justice and Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, the Director of Civil Legal Services, the Assistant Director of Civil Legal Services or a Crown Counsel of the Province of Manitoba, counsel for the Province, to the effect that:
(Ai) The Securities have been duly authorized, executed, issued and delivered in accordance with the Company laws of the Province of Manitoba, the Order or Orders of the Lieutenant Governor in Council of the Province applicable thereto and any laws of Canada applicable thereto and constitute valid and legally binding, direct and unconditional general obligations of the Province in accordance with their terms;
(ii) The Securities rank pari passu with all other debentures, bonds and notes constituting general obligations of the Province outstanding on the Closing Date;
(iii) All necessary action has been duly incorporated taken by or on behalf of the Province, and is validly existing as a corporation in good standing all necessary authorizations and approvals under the laws of the State Province of DelawareManitoba and under the laws of Canada have been duly obtained (or no such authorizations or approvals under the laws of Canada are necessary), with full corporate power for the authorization, execution and authority to own its properties and conduct its business as described in delivery by the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken as a wholeProvince of this Agreement;
(Biv) insofar as the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” This Agreement and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) the Indenture has Fiscal Agency Agreement have 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 obligation enforceable against the Company Province in accordance with its terms the laws of the Province of Manitoba, the Order or Orders of the Lieutenant Governor in Council of the Province applicable thereto and any laws of Canada applicable thereto (subject or there are no laws of Canada applicable thereto);
(v) There are no withholding or other income taxes or capital gains taxes payable under the laws of Canada or of the Province of Manitoba in respect of the Securities or the premium, if any, or the interest thereon by an owner who is not, and is not deemed to applicable bankruptcybe, insolvencya resident of Canada and who does not use or hold, fraudulent transferand who is not deemed to use or hold, reorganizationthe Securities in carrying on business in Canada, arrangementand no estate taxes or succession duties are presently imposed by Canada or the Province of Manitoba;
(vi) Such counsel has no reason to believe that either the Registration Statement or the Prospectus, moratorium or any amendment or supplement thereto, as of their respective dates and as of the Closing Date, or the Pricing Disclosure Package, as of the Applicable Time, 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; the opinion with respect to Canadian taxes under the caption “Description of Securities” in the Prospectus is accurately described therein; the descriptions in the Registration Statement and Prospectus of statutes, legal and governmental proceedings and contracts and other similar laws relating documents are accurate and fairly present the information required to be shown; and such counsel does not know of any legal or governmental proceedings required to be described in the Registration Statement or Prospectus which are not described as required, nor of any contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement which are not described and filed as required;
(vii) The execution and delivery by the Province of this Agreement and the Fiscal Agency Agreement, the creation, offering, issue and sale of the Securities and the performance by the Province of its obligations under this Agreement and the Fiscal Agency Agreement will not violate, conflict with or result in a breach of any indenture, agreement or other instrument to which the Province is a party or by which the Province is bound; and
(viii) No litigation or proceedings of any nature are now pending or threatened attacking or in any way attempting to restrain or enjoin the issue and delivery of the Securities or in any manner questioning the authority and proceedings under which the Securities are issued, or affecting the rights and remedies validity thereof, or contesting the title or official capacity of creditors generally from time any of the persons authorized by the applicable Order of the Lieutenant Governor in Council to time sign the Securities, or the authority of any of the persons authorized by said Order in effectCouncil to countersign the Securities under the designation “Authorized Signing Officer”, and subject to general principles no authority or proceedings for the issuance of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law); and the Securities have been duly authorized andmodified, when executed repealed, revoked or rescinded in whole or in part. In rendering such opinion, such counsel may rely upon the opinion of S▇▇▇▇▇▇▇ & C▇▇▇▇▇▇▇ LLP as to matters of United States law and authenticated procedure and need not express any opinion as to the financial statements or other financial data contained in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and the Prospectus.
(c) The Representatives shall have received from G▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, Canadian counsel to the Underwriters, given in respect of the laws of Manitoba and Canada, such opinion or opinions, dated the Closing Date, with respect to the validity of the Securities, the Registration Statement, the Pricing Disclosure Package, the Prospectus and other related matters as the Representatives may require, and the Province shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion or opinions, such counsel may rely upon the opinion of S▇▇▇▇▇▇▇ & C▇▇▇▇▇▇▇ LLP as to matters of United States law and procedure and need not express any amendments thereto opinion or belief as to the financial statements or other financial or statistical data contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(d) The Representatives shall have become effective received from S▇▇▇▇▇▇▇ & C▇▇▇▇▇▇▇ LLP, United States counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the validity of the Securities, the Registration Statement, the Pricing Disclosure Package, the Prospectus and other related matters as the Representatives may require, and the Province shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion or opinions, such counsel may rely upon the opinions of counsel named in paragraphs (b) and (c) of this Section as to matters of Canadian and Manitoba law and procedure, and need not express any opinion or belief as to the financial statements or other financial or statistical data contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(e) Subsequent to the execution and delivery of this Agreement and on or prior to the Closing Date, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the condition (financial or other) of the Province which, in the judgment of a majority in interest of the Underwriters, including any Representatives, materially impairs the investment quality of the Securities; or (ii) any downgrading in the rating of the Province’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act; any required filing ).
(f) The Representatives shall have received a certificate, dated the Closing Date, of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus Minister of Finance or the Final ProspectusDeputy Minister of Finance, and any supplements theretothe Assistant Deputy Minister of Finance — Treasury Division or Director of Capital Markets, pursuant to Rule 424(b) or Rule 433 has been made of the Province of Manitoba in the manner and within the time period required by Rule 424(b) or Rule 433which such official, as the case may be; to the best knowledge of such counselperson’s knowledge after reasonable investigation, shall state that the representations and warranties of the Province in this Agreement are true and correct, the Province has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement, as amended, Statement or any notice that would prevent its use part thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under by the Act;Commission.
(Eg) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture Act and such as may be required under the blue sky laws of any jurisdiction in connection with the The purchase and distribution of the Securities and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the SecuritiesSecurities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the consummation United States of any other America, the Province of the transactions herein contemplated Manitoba or the fulfillment State of New York.
(h) The Province shall have furnished to the terms hereof will conflict with, result in a breach of, Representatives or constitute a default under, their counsel such further certificates and documents as the charter Representatives or by-laws of the Company or, to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to request. All such opinions, certificates and documents will be applicable in compliance with the provisions hereof only if they are satisfactory to the Company Underwriters or the Representatives and to S▇▇▇▇▇▇▇ & C▇▇▇▇▇▇▇ LLP, counsel to the Underwriters. The Province will furnish the Representatives with such conformed copies of any U.S. federal or California or Delaware court,such opinions, certificates, letters and documents as they reasonably request.
Appears in 2 contracts
Sources: Underwriting Agreement (Province of Manitoba), Underwriting Agreement (Province of Manitoba)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters Underwriters, as to purchase the Securities to be purchased at each Time of Delivery, shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Timedate hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) Applicable Time and at and as of the Closing Datesuch Time of Delivery, to the accuracy in all material respects of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in with the manner and Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, Statement or any notice that would prevent its use, as amended from time to time, part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or threatened.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 issued and no proceeding for that purpose 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 to your reasonable satisfaction;
(b) The Company ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance satisfactory to you, with respect to such matters as the Representatives:Underwriters may reasonably require, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(ic) the opinion of the General Counsel, an Associate General The Company’s Senior Corporate Counsel or a Deputy General Counsel such other internal counsel as shall be reasonably acceptable to the Underwriters (the “Internal Counsel”), shall have furnished to you such counsel’s written opinion, to the effect set forth in Exhibit C, dated such Time of the CompanyDelivery, or an outside in form and substance satisfactory to you;
(d) ▇▇▇▇▇▇▇ LLP, Maryland counsel for the Company, dated the Closing Dateshall have furnished to you their written opinion, substantially to the effect that:
(A) the Company has been duly incorporated set forth in Exhibit B, dated such Time of Delivery, in form and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full corporate power and authority substance satisfactory to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken as a wholeyou;
(B) insofar as the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to be applicable to the Company of any U.S. federal or California or Delaware court,
Appears in 2 contracts
Sources: Underwriting Agreement (Huntington Bancshares Inc/Md), Underwriting Agreement (Huntington Bancshares Inc/Md)
Conditions to the Obligations of the Underwriters. The several obligations of the Underwriters to purchase the Securities shall be hereunder are subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date, to the accuracy in all material respects of the statements of the Company made in any certificates delivered performance by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Transferor of its obligations hereunder and to the following additional conditions:
(a) The Final ProspectusRegistration Statement shall have become effective not later than 5:30 P.M., New York City time, on February 21, 1997, or any supplement thereto, such later date as shall have been filed in consented to by the manner and within Representative; prior to the time period required under Rule 424(b)Closing Date, and any Issuer Free Writing Prospectus 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, Statement or any notice that would prevent its use, as amended from time to time, post-effective amendment shall have been issued issued, and no proceedings for that such purpose shall have been instituted or threatened.threatened by the Commission; if required, the Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 6(a) hereof; and all requests for additional information shall have been complied with to the satisfaction of the Representative;
(b) The Company the representations and warranties of the Transferor and the Servicer contained herein are true and correct on and as of the Closing Date as if made on and as of the Closing Date and the representations and warranties of the Transferor and the Servicer in the Pooling and Servicing Agreement will be true and correct on the Closing Date; and the Transferor shall have complied with all agreements and all conditions on its part to be performed or satisfied hereunder and under the Basic Documents at or prior to the Closing Date;
(c) subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of (i) any intended or potential downgrading or (ii) any review or possible change that does not indicate an improvement, in the rating accorded any securities of the Transferor by any "nationally recognized statistical rating organization", as such term is defined for purposes of Rule 436(g)(2) under the Securities 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);
(d) since the date hereof there shall not have been any material adverse change or any development involving a prospective material adverse change, in or affecting the general affairs, business, prospects, management, financial position, stockholder's equity or results of operations of the Transferor or the Servicer, otherwise than as set forth or contemplated in the Prospectus, the effect of which in the judgment of the Representative makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Certificates on the Closing Date on the terms and in the manner contemplated in the Prospectus;
(e) the Representative shall have received on and as of the Closing Date a certificate of an executive officer of the Transferor with specific knowledge about the Transferor's financial matters, satisfactory to the Representative to the effect set forth in subsections (a) through (d) of this Section;
(f) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Transferor and Servicer, or other counsel satisfactory to the Representative shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyRepresentative their written opinion, dated the Closing Date, substantially in form and substance satisfactory to the Representative, to the effect that:
(Ai) the Company Transferor has been duly incorporated organized and is validly existing as a corporation national banking association in good standing under the laws of the State of DelawareUnited States, with full corporate power and authority (corporate and other) to own its properties and conduct its business as described in the Disclosure Package Prospectus;
(ii) the Transferor has been duly qualified as a foreign corporation for the transaction of business and Final Prospectus is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as amended to require such qualification, other than where the failure to be so qualified or supplemented, except where such failure in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a wholeTransferor or the transactions contemplated herein or in the Basic Documents;
(Biii) insofar the Servicer is duly incorporated and is validly existing in good standing under the laws of the state of Minnesota, with power and authority (corporate and other) to own its properties and conduct its business as the statements contained described in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisionsProspectus;
(Civ) the Indenture has been duly authorized, executed and delivered by the Company, Servicer has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the Trust Indenture Actlaws of each other jurisdiction in which it owns or leases properties, and constitutes or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not have a legalmaterial adverse effect on the Servicer or the transactions contemplated herein or in the Basic Documents;
(v) other than as set forth or contemplated in the Prospectus, valid and binding obligation enforceable there are no legal or governmental investigations, actions, suits or proceedings pending or, to the best of such counsel's knowledge, threatened against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights Transferor or the Servicer or any of its properties, or to which the Transferor or Servicer is or may be a party or to which any property of the Transferor or Servicer is or may be the subject (i) that are required to be disclosed in the Registration Statement or the Prospectus, (ii) asserting the invalidity of this Agreement or of any of the Basic Documents, (iii) seeking to prevent the issuance of the Certificates or the consummation of any of the transactions contemplated by this Agreement or any of the Basic Documents, (iv) that may adversely affect the federal or state income, excise, franchise or similar tax attributes of the Certificates, (v) that could materially and remedies adversely affect the performance by the Transferor or the Servicer of creditors generally from time its obligations under this Agreement or any of the Basic Documents or (vi) which, if determined adversely to time the Transferor or the Servicer, could individually or in effectthe aggregate reasonably be expected to have a material adverse effect on the general affairs, and subject to general principles of equitybusiness, regardless of whether such enforceability is considered in a proceeding in prospects, management, financial position, stockholders' equity or at law); and the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions results of operations of the Indenture and delivered Transferor or the Servicer taken as a whole or that would reasonably be expected to and paid for by materially adversely affect the Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations interests of the Company enforceable against holders of the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law)Certificates;
(Dvi) such counsel does not know of any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement and any amendments thereto have become effective under or the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant required to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, be filed as the case may be; an exhibit to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, Statement that are not described or filed or as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Actrequired;
(Evii) this Agreement has been duly authorized, executed and delivered by the CompanyTransferor and the Servicer;
(Fviii) no authorizationthe Certificates have been duly and validly authorized and, approval when such Certificates are duly and validly executed and authenticated by the Trustee and delivered in accordance with the Pooling and Servicing Agreement and delivered and paid for pursuant to this Agreement, will be validly issued and outstanding and entitled to the benefits and security afforded by the Pooling and Servicing Agreement;
(ix) each of the Basic Documents has been duly authorized, executed and delivered by the Transferor and the Servicer, as applicable, and constitutes a valid and binding obligation of each of the Transferor and the Servicer enforceable against each of the Transferor and the Servicer in accordance with their terms, subject as to enforceability to applicable bankruptcy, insolvency, reorganization, conservatorship, receivership, liquidation or other action bysimilar laws affecting the enforcement of creditors rights generally and to general equitable principles;
(x) each of the Transferor and the Servicer is not, nor with the giving of notice or lapse of time or both would be, in violation of or in default under, its articles of association or bylaws or any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Transferor or the Servicer is a party or by which it or any of its properties is bound, except for violations and no notice todefaults which individually and in the aggregate are not material to the Transferor or the Servicer and its subsidiaries taken as a whole or to the holders of the Certificates; the issue and sale of the Certificates and the execution, consent ofdelivery and performance by the Transferor or the Servicer, order ofas applicable, or filing withof the Certificates, any U.S. federal or California or Delaware governmental authority or agency is required for the Basic Documents and this Agreement and the consummation of the transactions herein and therein contemplated hereinwill not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Transferor or the Servicer is a party or by which the Transferor or the Servicer is bound or to which any of the property or assets of the Transferor or the Servicer is subject, nor will any such action result in any violation of the provisions of the articles of association, or the bylaws of the Transferor or the Servicer or any applicable law or statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Transferor or the Servicer, or any of its properties;
(xi) no consent, approval, authorization, order, license, registration or qualification of or with any court or governmental agency or body is required for the issue and sale of the Certificates or the consummation of the other transactions contemplated by this Agreement or the Basic Documents, except such consents, approvals, authorizations, orders, licenses, registrations or qualifications as have been obtained under the Securities Act, the Exchange Act and the Trust Indenture Act and such as may be required under the blue sky state securities or Blue Sky laws of any jurisdiction in connection with the purchase and distribution of the Certificates by the Underwriters and the filing of any financing statements required to perfect the Trust's interest in the Receivables;
(xii) the statements in the Prospectus under the heading "Description of Certificates" insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents or proceedings; the statements in the Registration Statement and the Prospectus under the headings "Federal Income Tax Consequences", "State and Local Tax Consequences", "ERISA Considerations", "Certain Legal Aspects of the Receivables" and "Legal Matters", to the extent they constitute descriptions of matters of law or legal conclusions with respect thereto, have been prepared or reviewed by such counsel and are correct in all material respects;
(xiii) the Registration Statement has become effective under the Securities Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or threatened by the Commission; such counsel is of the opinion that the Registration Statement and the Prospectus and any amendments and supplements thereto (other approvals (specified in than any accounting, statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Securities Act; and nothing has come to such counsel's attention that would cause it to believe that (other than the accounting, statistical or financial data included therein, as to which such counsel need express no belief) the Registration Statement and the prospectus included therein at the time the Registration Statement became effective and at the Closing Date contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and that the Prospectus, as amended or supplemented, if applicable, 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;
(xiv) the Transferor and Servicer possess or have obtained all licenses, permits, certificates, consents, orders, approvals and other authorizations from, and have made all declarations and filings with, all federal, state, local and other governmental authorities and all courts and other tribunals, domestic or foreign, necessary to own or lease, as the case may be, and to operate its properties and to carry on its business as conducted as of the date hereof, and neither the Transferor nor the Servicer has received any actual notice of any proceeding relating to revocation or modification of any such license, permit, certificate, consent, order, approval or other authorization, except as described in the Registration Statement and the Prospectus; and each of the Transferor and Servicer is in compliance with all laws and regulations relating to the conduct of its business as conducted as of the date of the Prospectus;
(xv) the Transferor has full power and authority to sell and assign the Receivables to the Trust pursuant to the Pooling and Servicing Agreement and has duly authorized such sale and assignment to the Trust by all necessary corporate action;
(xvi) by assignment and delivery of each of the Receivables to the Trust as of the Closing Date, the Transferor will transfer title in the Receivables to the Trust, subject to no prior lien, mortgage, security interest, pledge, adverse claim, change or encumbrance;
(xvii) the Pooling and Servicing Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended, and the Trust is not required to be registered as an "investment company" under the Investment Company Act of 1940, as amended;
(xviii) the Receivables are either "accounts" or "general intangibles" as defined in the UCC;
(xix) all filings necessary under applicable law to perfect the transfer of the Receivables by the Transferor to the Trustee as Trustee of the Trust pursuant to the Pooling and Servicing Agreement have been obtainedmade and no other filings (other than the filing of continuation statements) need be made to maintain the perfection of the transfer of the Receivables to the Trustee as Trustee of the Trust pursuant to the Pooling and Servicing Agreement; and
(Gxx) none the Certificates, this Agreement, the Pooling and Servicing Agreement and the Supplement each conform in all material respects with the descriptions thereof contained in the Registration Statement and Prospectus;
(g) on the date hereof and also on the Closing Date, ▇▇▇▇▇ & Young LLP shall have furnished to you letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(h) the Representative shall have received on and as of the issue and sale Closing Date an opinion of ▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Underwriters, with respect to the validity of the SecuritiesPooling and Servicing Agreement and the Certificates and with respect to the Registration Statement, the consummation Prospectus and other related matters as the Representative 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;
(i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Transferor, shall have furnished to the Representative their written opinion, dated the Closing Date, with respect to certain state and federal income tax matters, in form and substance satisfactory to the Representative, to the effect that:
(i) the statements in the Registration Statement under the heading "Federal Income Tax Consequences" and the summary thereof under the heading "Summary--Tax Status," to the extent they constitute matters of federal law or legal conclusions with respect thereto, have been reviewed by such counsel and are correct in all material respects;
(ii) for federal income tax purposes, the Certificates will be characterized as indebtedness secured by the Receivables and any other of Trust assets, and the transactions herein contemplated or the fulfillment of the terms hereof Trust will conflict with, result in a breach of, or constitute a default under, the charter or by-laws of the Company or, to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to not be applicable to the Company of any U.S. federal or California or Delaware court,characterized as an "associ
Appears in 1 contract
Sources: Underwriting Agreement (First Bank Corporate Card Master Trust)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time, as date hereof and each applicable Time of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing DateDelivery, to the accuracy in all material respects of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final ProspectusProspectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; any final term sheet contemplated by Section 5(a) hereof, or and any supplement theretoother material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed in with the manner and Commission within the applicable time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, Statement or any notice that would prevent its use, as amended from time to time, part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or threatenedthreatened 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 Company shall have furnished to the RepresentativesRepresentatives a certificate, dated each applicable Time of Delivery, of the Company, signed by the principal financial or accounting officer of the Company, to the effect that, to the best of his knowledge after reasonable investigation:
(i) the opinion The representations and warranties of the General CounselCompany in this Agreement are true and correct in all material respects on and as of the applicable Time of Delivery with the same effect as if made on the applicable Time of Delivery and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the applicable Time of Delivery, an Associate General Counsel in all material respects;
(ii) No stop order suspending the effectiveness of the Registration Statement or a 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 Company 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 Company’s unsecured debt securities or preferred stock as described in Section 7(i)(i) and (B) no announcement has been made with respect to any rating accorded the Company’s unsecured debt securities or preferred stock as described in Section 7(i)(ii).
(c) The Company shall have furnished to the Underwriters the opinion, dated each applicable Time of Delivery, of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Esq., Senior Vice President and Deputy General Counsel of the Company, or an outside counsel which opinion shall be limited to the federal laws of the United States and the laws of the State of North Carolina (and, for the Companyavoidance of doubt, dated shall not extend to the Closing Date, substantially laws of any jurisdiction other than the United States with respect to any matter appearing under the caption “Underwriting” in the Pricing Prospectus or Prospectus) to the effect that:
(Ai) the The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of DelawareNorth Carolina, with full corporate power and authority under such laws to own its properties and to conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken as a wholeProspectus;
(Bii) insofar as the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description All of the Global Notes” and Company’s outstanding shares of Common Stock, par value $3.33 1/3 per share, including the statements contained in the Base Prospectus under the caption “Description of the Debt applicable Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effectvalidly issued, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law)are fully paid and non-assessable;
(Diii) The Company has all corporate power and authority necessary to execute and deliver this Agreement and the Registration Statement Securities and any amendments thereto have become effective under the Acthas all such power and authority to perform its obligations hereunder and thereunder; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization; the execution, approval delivery and performance of this Agreement and the Securities by the Company and compliance with the provisions hereof by the Company will not constitute a breach of or default under, the corporate charter or by-laws of the Company, or any material agreement, indenture or other action byinstrument relating to indebtedness for money borrowed known to such counsel to which the Company 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 Company or any property of the Company, which breach or default would be reasonably likely to have a material adverse effect on the Company and its subsidiaries taken as a whole; and to the best of such counsel’s knowledge, no notice toconsent, consent of, authorization or order of, or filing or registration with, any U.S. federal court or California governmental agency or Delaware governmental authority or agency is required for the consummation execution, delivery and performance of this Agreement and the transactions contemplated herein, Securities by the Company except such as may be required under applicable state securities or “blue sky” laws or as have been obtained under duly made or obtained;
(iv) The Securities conform in all material respects to the descriptions thereof in the Pricing Disclosure Package and Prospectus; and
(v) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the applicable Time of Delivery (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, the Exchange 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 paragraph (iv) of this Section 7(c), he has no reason to believe (i) that any part of the Registration Statement or any further amendment thereto made by the Company prior to the applicable Time of Delivery (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 (other than the financial statements and other financial data contained therein, as to which such counsel need express no opinion), 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 applicable Time of Delivery, the Prospectus or any further amendment or supplement thereto made by the Company prior to the applicable Time of Delivery (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. As to matters governed by New York law, ▇▇. ▇▇▇▇▇▇▇▇ may rely upon the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP delivered pursuant to Section 7(d).
(d) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, shall have furnished to the Underwriters an opinion, dated each applicable Time of Delivery to the effect that:
(i) The applicable Securities have been duly authorized and, upon payment and delivery in accordance with the Underwriting Agreement, will be validly issued, fully paid and non-assessable.
(ii) This Agreement has been duly authorized, executed and delivered by the Company.
(iii) The statements made in the Pricing Prospectus and the Prospectus under the heading “Certain U.S. Federal Income and Estate Tax Consequences to Non-U.S. Holders,” insofar as they purport to constitute summaries of U.S. federal income tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters described therein in all material respects.
(iv) The statements made in the Pricing Prospectus and the Prospectus under the caption “Certain ERISA Considerations,” insofar as they purport to constitute summaries of the terms of the statutes, rules and regulations thereunder, constitute accurate summaries of the terms of such statutes, rules and regulations in all material respects.
(v) 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 applicable Securities by the Company pursuant to this Agreement except for the registration under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the blue sky state securities or Blue Sky laws of any jurisdiction in connection with the purchase and distribution of the Securities and such other approvals (specified in such opinion) as have been obtained; andby the Underwriters. As to matters governed by North Carolina law, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely upon the opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Esq., delivered pursuant to Section 7(c).
(Ge) none The Representatives shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated each applicable Time of Delivery, with respect to such matters as the Representatives may reasonably require. As to matters governed by North Carolina law, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely upon the opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Esq., Senior Vice President and Deputy General Counsel of the issue Company, delivered pursuant to Section 7(c).
(f) On the date hereof prior to the execution of this Agreement and sale each applicable Time of Delivery, KPMG LLP, as independent accountants of the SecuritiesCompany, shall have furnished to the Representatives a letter, dated on such date and in form and substance reasonably 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 or incorporated by reference into the Prospectus, and confirming that they are independent accountants within the meaning of the Act and the Exchange Act, and the respective applicable published rules and regulations of the Commission thereunder. On the date hereof prior to the execution of this Agreement, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the consummation of any other Controller and Principal Accounting Officer of the transactions herein contemplated or Company, shall have furnished to you a letter, dated the fulfillment date of delivery thereof, in form and substance reasonably satisfactory to the terms hereof will conflict withRepresentatives with respect to the matters set forth on Annex A hereto.
(g) Subsequent to the Applicable Time, result in a breach ofthere shall not have occurred any change, or constitute any development involving a default underprospective change, in or affecting the charter financial position, long-term debt, stockholders’ equity or by-laws results of operations of the Company orand its consolidated subsidiaries that the Representatives conclude, after consultation with the Company, is so material and adverse as to make it impractical or inadvisable to proceed with the public offering or the delivery of the Securities as contemplated by the Prospectus.
(h) The Company shall have furnished to the Representatives such counselfurther information, certificates and documents as they may reasonably request prior to each applicable Time of Delivery.
(i) On or after the Applicable Time, (i) no downgrading shall have occurred in the rating accorded the Company’s knowledgeunsecured debt securities or preferred stock by any “nationally recognized statistical rating organization”, as that term is defined by the terms Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any Material Agreementsof the Company’s unsecured debt securities or preferred stock.
(j) The Company shall have complied with the provisions of the first sentence of Section 5(e) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement.
(k) Application to list the Securities to be sold at such Time of Delivery shall have been duly filed with the New York Stock Exchange. If any of the conditions specified in this Section 7 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 decree respects reasonably satisfactory in form and substance to the Representatives and their counsel, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or regulation known to at any time prior to, each applicable Time of Delivery by the Representatives. Notice of such counsel to cancellation shall be applicable given to the Company of any U.S. federal in writing or California by telephone or Delaware court,telegraph confirmed in writing.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Execution Timethough made on, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date hereof and (including the filing of any document incorporated by reference thereinii) on, and as of though made on, the Closing Date, to the accuracy in all material respects of the statements of the Company Republic made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Final ProspectusPrior to the Closing Date, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus 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, or any notice that would prevent its use, as amended from time to time, or any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; and the Prospectus shall have been filed pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) of this Agreement.
(b) The Company Head or Acting Head of the Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyRepresentatives such counsel’s written opinion, dated the Closing Date, substantially to the effect that:
(i) The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Republic and the Agreements constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(iv) The Securities have been duly authorized, executed, issued and delivered by the Republic in accordance with the Fiscal Agency Agreement, and, assuming due authentication and delivery by the Fiscal Agent, the Securities constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(v) The obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Securities) of the Republic that will rank equal in right of payment with all other present and future unsecured and unsubordinated External Indebtedness of the Republic;
(vi) There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of any of the Agreements, the issue of the Securities as contemplated herein and in the Prospectus, or the performance or observance by the Republic of any of the terms of the Agreements or the Securities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the due execution, delivery and performance by the Republic of any of the Agreements or the Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for (I) Law 533 of November 11, 1999, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999, (III) the relevant portions of Law 80 of October 28, 1993, (IV) Law 781 of December 20, 2002, (V) Decree No. 2681 of December 29, 1993, (VI) authorization by Act of the Comisión Interparlamentaria de Crédito Público adopted in its meeting held on January 19, 2005 and June 16, 2005, (VII) Resolution No. 1634 dated July 11, 2005 of the Ministerio de Hacienda y Crédito Público, (VIII) approval No. 3317 of November 29, 2004 of the Consejo Nacional de Política Económica y Social and (IX) External Resolution No. 8 of November 19, 2004, issued by the Board of Directors of the Central Bank (each of which shall be listed in such counsel’s written opinion and copies of which shall be furnished to counsel to the Underwriters on or prior to the Closing Date);
(viii) To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not necessary that any Agreement or the Securities be registered, recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General of Public Credit of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 1634 dated July 11, 2005, issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) a summary of the Agreements in the Diario Unico de Contratación Pública of the Republic, to satisfy the requirement for such publications, (B) notice of the external indebtedness represented by the Securities to the Banco de la República and (C) in accordance with External Resolution No. 8 of November 19, 2004, issued by the Junta Directiva del Banco de la República, the delivery of written information from the Director General of Public Credit of the Ministerio de Hacienda y Crédito Público to the Junta Directiva del Banco de la República regarding the proposed issuance of the Securities, each of which shall be effected on or prior to the Closing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that, the Securities are held by a non-resident and non-domiciliary of the Republic.
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process; provided, that, except as provided under Article 177 of the Código Contencioso Administrativo, which does not override Articles 684 or 513 of the Código de Procedimiento Civil of the Republic, the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 15 hereof and in the Fiscal Agency Agreement and the Securities and the appointment of the Authorized Agent in Section 15 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 15 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Fiscal Agency Agreement and the Securities as provided in Section 14 hereof, Section 18 of the Fiscal Agency Agreement and Section 16 of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 15 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur”, subject to the provisions of Article 693 of the Código de Procedimiento Civil which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic and subject to compliance with the provisions of Article 694 of the Código de Procedimiento Civil. The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus, as amended or supplemented, and their filing with the Commission have been duly authorized by and on behalf of the Republic, and the Registration Statement, as amended, has been duly executed by and on behalf of the Republic, and the information in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, stated on the authority of public officials of the Republic has been stated in their official capacities thereunto duly authorized;
(xvii) The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Fiscal Agency Agreement, insofar as matters of Colombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Company has been duly incorporated and is validly existing as a corporation in good standing under Registration Statement, at the laws respective times each part became effective, contained an untrue statement of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on fact or omitted to state a material fact required to be stated therein or necessary to make the Company and its subsidiaries, taken as a whole;statements therein not misleading; and
(B) insofar No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof 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 to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel may state that he or she is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Disclosure PackageProspectus (except to the extent expressly set forth in (xvii) above) and that such counsel makes no representation that such counsel has independently verified the accuracy, completeness and fairness of such statements (except as aforesaid), and that such counsel’s opinions referred to in this subsection (b) are limited to matters of Colombian law and, insofar as the statements contained opinion required by this subsection (b) is affected by matters of United States or New York law, it may be given in reliance upon the Final Prospectus under opinion required by subsection (c) of this Section 6 and that, insofar as the caption “Description foregoing opinions relate to the legality, validity, binding effect or enforceability of any agreement or obligation of the Global Notes” and Republic, such counsel has assumed that each party to such agreement or obligation other than the statements contained in Republic has satisfied those legal requirements that are applicable to it to the Base Prospectus under extent necessary to make such agreement or obligation enforceable against it.
(c) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, United States counsel to the caption “Description of Republic, shall have furnished to the Debt Securities” purport Representatives their written opinion, dated the Closing Date, to describe specific provisions of the effect that:
(i) Assuming that the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) the Indenture has have been duly authorized, executed executed, authenticated, issued and delivered by against payment therefor, the CompanySecurities constitute valid, has been duly qualified under binding and enforceable obligations of the Trust Indenture ActRepublic, and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium insolvency and other similar laws relating to or affecting the creditors’ rights and remedies of creditors generally from time to time in effectgenerally, and subject to general principles of equity, regardless of equity (whether such enforceability enforcement is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to be applicable to the Company of any U.S. federal or California or Delaware court,con
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Execution Timethough made on, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date hereof and (including the filing of any document incorporated by reference thereinii) on, and as of though made on, the Closing Date, to the accuracy in all material respects of the statements of the Company Republic made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Final ProspectusPrior to the Closing Date, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus 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, or any notice that would prevent its use, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) of this Agreement; and any final term sheet contemplated by Section 4(a) hereof, and any other material required to be filed by the Republic 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.
(b) The Company Head or Acting Head of the Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyRepresentatives such counsel’s written opinion, dated the Closing Date, substantially to the effect that:
(i) The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Republic and the Agreements constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(iv) The Securities have been duly authorized, executed, issued and delivered by the Republic in accordance with the Indenture, and, assuming due authentication and delivery by the Trustee, the Securities constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms entitled to the benefits provided by the Indenture;
(v) The obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Securities) of the Republic that will rank without any preference among themselves and equal in right of payment with all other present and future unsecured and unsubordinated External Indebtedness of the Republic;
(vi) There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of any of the Agreements, the issue of the Securities as contemplated herein and in the Prospectus, or the performance or observance by the Republic of any of the terms of the Agreements or the Securities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the due execution, delivery and performance by the Republic of any of the Agreements or the Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for, (I) Law 533 of November 11, 1999, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999, (III) the relevant portions of Law 80 of October 28, 1993, (IV) Law 781 of December 20, 2002, (V) Law 1366 of December 21, 2009, (VI) Law 1624 of April 29, 2013, (VII) Law 1771 of December 30, 2015, (VIII) Decree No. 1068 of May 26, 2015, (IX) Resolution No. 3348 dated October 2, 2018 of the Ministerio de Hacienda y Crédito Público; (X) CONPES Document No. 3928 DNP, MINHACIENDA, dated May 8, 2018; (XI) evidence of publication of this Agreement in the Sistema Eléctronico de Contratación Pública SECOP of the Republic and (XII) Authorization by Act of the Comisión Interparlamentaria de Crédito Público adopted in its meetings held on June 6 and 14, 2018 (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not necessary that any Agreement or the Securities be registered, recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General or Acting Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 3348 dated October 2, 2018, issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) the publication of this Agreement in the Sistema Electrónico de Contratación Pública-SECOP of the Republic, to satisfy the requirement for such publications, (B) filing of information before the Colombian Central Bank (Banco de la República) of public external indebtedness report on Form No. 6 (Formulario 6), resulting from the issuance of the Securities under the Indenture each of which shall be effected on or prior to the Closing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that the Securities are held by a non-resident and non-domiciliary of the Republic;
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process, subject to the terms, conditions, limitations or exceptions under (i) Articles 192, 195, 298 and 299 of Law 1437 of 2011 (Código de Procedimiento Administrativo y de lo Contencioso Administrativo); and (ii) Articles 593, 594 and 595 et al of Law 1564 of 2012 (Código General del Proceso); and Article 19 of Decree 111 of January 15, 1996, pursuant to which the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Indenture and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Indenture and the Securities as provided in Section 15 hereof, Section 9.7(a) of the Indenture and Section 16(a) of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur,” subject to the provisions of (i) Article 605 (et al) of Law 1564 of 2012 (Código General del Proceso), which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic; and (ii) subject to compliance with the provisions of Articles 606 and 607 of Law 1564 of 2012 (Código General del Proceso). The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic other than those governing judicial procedures, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly legalized copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus, as amended or supplemented, and their filing with the Commission have been duly authorized by and on behalf of the Republic, and the Registration Statement, as amended, has been duly executed by and on behalf of the Republic, and the information in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, stated on the authority of public officials of the Republic has been stated in their official capacities thereunto duly authorized;
(xvii) The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Indenture, insofar as matters of Colombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Company has been duly incorporated and is validly existing as a corporation in good standing under Registration Statement, at the laws respective times each part became effective, contained an untrue statement of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on fact or omitted to state a material fact required to be stated therein or necessary to make the Company and its subsidiaries, taken as a wholestatements therein not misleading;
(B) insofar No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof 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 to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(C) No information has come to such counsel’s attention that causes such counsel to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in 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 the circumstances under which they were made, not misleading. Such counsel may state that he or she is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Disclosure PackageProspectus (except to the extent expressly set forth in (xvii) above) and that such counsel makes no representation that such counsel has independently verified the accuracy, the statements contained in the Final Prospectus under the caption “Description completeness and fairness of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Actexcept as aforesaid), and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, to such counsel’s knowledgeopinions referred to in this subsection (b) are limited to matters of Colombian law and, insofar as the terms opinion required by this subsection (b) is affected by matters of any Material AgreementsUnited States or New York law, or any material decree or regulation known to such counsel to it may be applicable to given in reliance upon the Company opinion required by subsection (c) of any U.S. federal or California or Delaware court,this Section 7 and that, i
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Shares shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Timedate hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date, to the accuracy in all material respects of the statements of the Company and the Selling Stockholders made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company and the Selling Stockholders of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required by Rule 433; and no No stop order suspending the effectiveness of the Registration Statement, or any notice that would prevent its use, as amended from time to time, shall have been issued and no proceedings for that purpose shall have been instituted or threatened; and any Final Prospectus shall have been filed or mailed for filing with the Commission within the time period prescribed by the Commission.
(b) The Company shall have furnished to the Representatives:
(i) Representatives the opinion of the General CounselMorrison & Foerster LLP, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the Company, dated the Closing DateDa▇▇, substantially to the effect that▇▇ ▇he ▇▇▇▇▇▇ ▇f paragraphs (i) through (x) below:
(Ai) the Company has been is a duly incorporated organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full Delaware and has the corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken as a wholeProspectus;
(Bii) insofar the Company is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the statements contained Company is required to be so qualified or licensed;
(iii) the Shares have been duly and validly authorized and issued and are fully paid and nonassessable;
(iv) the Shares conform in all material respects to the Disclosure Package, the statements description thereof contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisionsProspectus;
(Cv) the Indenture has been duly authorizedsuch counsel is without knowledge that (1) there is any pending or threatened action, executed and delivered suit or proceeding before or by the Companyany court or governmental agency, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding obligation enforceable against authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in accordance with its terms the Registration Statement which is not disclosed in the Final Prospectus, or (subject 2) any franchise, contract or other document of a character required to applicable bankruptcybe described in the Registration Statement or Final Prospectus, insolvencyor to be filed as an exhibit to the Registration Statement, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to is not so described or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law)filed as required;
(Dvi) the Registration Statement and any amendments thereto have has become effective under the Act; such counsel is without knowledge that any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use Statement has been issued and no or any proceedings for that purpose have been instituted or are pending threatened; and the Registration Statement, the Final Prospectus and each amendment thereof or contemplated under supplement thereto (other than the Actfinancial statements and other financial and statistical information contained therein or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder;
(Evii) this Agreement has been duly authorized, executed and delivered by the CompanyCompany and constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, 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);
(Fviii) no authorizationconsent, approval approval, authorization or other action by, and no notice to, consent of, order of, of any court or filing with, any U.S. federal governmental agency or California or Delaware governmental authority or agency body is required on behalf of the Company for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture Act and such as may be required under the blue sky or insurance laws of any jurisdiction in connection with the purchase and distribution of the Securities Shares by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and;
(Gix) none of neither the issue and sale of the SecuritiesShares, nor the consummation of any other of the transactions herein contemplated or nor the fulfillment of the terms hereof will conflict with, result in a breach of, or constitute a default under, under the charter certificate of incorporation or by-laws of the Company or, to such counsel’s knowledge, (1) the terms of any Material Agreementsmaterial indenture or other agreement or instrument known to such counsel and to which the Company or the Subsidiaries is a party or bound, or (2) any material decree order or regulation known to such counsel to be applicable to the Company and the Subsidiaries of any U.S. federal court, regulatory body, administrative agency, governmental body or California arbitrator having jurisdiction over the Company or the Subsidiaries; and
(x) such counsel is without knowledge of 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, except for the registration rights of holders of Common Stock acquired in connection with the Redemption. In rendering such opinion, but without opining in connection therewith, such counsel shall also state that, although 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, it has no reason to believe that the Registration Statement or any amendment thereof at the time it became effective contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading or that the Final Prospectus, as amended or supplemented, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States, or the General Corporate Law of Delaware court,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 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 Firm Shares, 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 President and Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus and this Agreement and that to the best of their knowledge:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement, as amended, has been issued and no proceedings for that purpose have been instituted or threatened; and
(iii) since the date of the most recent financial statements included in the Final Prospectus, there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its Subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus.
(e) At the Closing Date, KPMG 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 Closing Date, in form and substance satisfactory to the Representatives, stating in effect that:
(i) They are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder.
(ii) In their opinion, the consolidated financial statements of the Company and its subsidiaries audited by them and included or incorporated by reference in the Registration Statement and Final Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act and the regulations thereunder with respect to registration statements on Form S-2 and the Exchange Act and the regulations thereunder.
(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, compensation committee and audit committee of the Company and the boards of directors and executive committees of its subsidiaries as set forth in the minute books through a specified date not more than five business days prior to the date of delivery of such letter;
(b) Performing the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Accounting Standards No. 100 and No. 71, Interim Financial Information, on the unaudited condensed consolidated interim financial statements of the Company and its consolidated subsidiaries included or incorporated by reference in the Registration Statement and Final Prospectus and reading the unaudited interim financial data, if any, for the period from the date of the latest balance sheet included or incorporated by reference in the Registration Statement and Final Prospectus to the date of the latest available interim financial data; and
(c) Making inquiries of certain officials of the Company who have responsibility for financial and accounting matters regarding the specific items for which representations are requested below, nothing has come to their attention as a result of the foregoing procedures that caused them to believe that:
(1) the unaudited interim financial statements, included or incorporated by reference in the Registration Statement and Final Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the published rules and regulations thereunder;
(2) any material modifications should be made to the unaudited interim financial statements, included or incorporated by reference in the Registration Statement and Final Prospectus, for them to be in conformity with generally accepted accounting principles;
(3) (i) at the date of the latest available interim financial data and at the specified date not more than five business days prior to the date of the delivery of such letter, there was any change in the capital stock or the long-term debt (other than scheduled repayments of such debt) or any decreases in shareholders' equity of the Company and the Subsidiaries on a consolidated basis as compared with the amounts shown in the latest balance sheet included or incorporated by reference in the Registration Statement and the Final Prospectus or (ii) for the period from the date of the latest available financial data to a specified date not more than five business days prior to the delivery of such letter, there was any change in the capital stock or the long-term debt (other than scheduled repayments of such debt) or any decreases in shareholders' equity of the Company and the Subsidiaries on a consolidated basis, except in all instances for changes or decreases which the Registration Statement and Final Prospectus discloses have occurred or may occur, or KPMG LLP shall state any specific changes or decreases.
(iv) The letter shall also state that KPMG LLP has carried out certain other specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included or incorporated by reference in the Registration Statement and Final Prospectus and which are specified by the Representatives and agreed to by KPMG LLP, and has found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company and its Subsidiaries identified in such letter. In addition, at the time this Agreement is executed, KPMG LLP shall have furnished to the Representatives a letter or letters, dated the date of this Agreement, in form and substance satisfactory to the Representatives, to the effect set forth in this paragraph (e) and in Schedule I hereto.
(f) Subsequent to the respective dates as of which information is given in the Registration Statement and the Final Prospectus, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 5 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business or properties of the Company and its subsidiaries the effect 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 Shares as contemplated by the Registration Statement and the Final Prospectus.
(g) You shall be satisfied that, and you shall have received a certificate dated the Closing Date, from each Selling Stockholder to the effect that, as of the Closing Date, as the case may be: (i) the representations and warranties made by such Selling Stockholders herein are true and correct in all material respects on the Closing Date and (ii) such Selling Stockholder has complied with all obligations and satisfied all conditions that are required to be performed or satisfied on his or its part at or prior to the Closing Date.
(h) At or prior to the Closing Date, you shall have received the written commitment, in the form agreed to with the Representatives, from each of the Company's senior executive officers and directors not to directly or indirectly sell, offer or contract to sell or otherwise dispose of or transfer any shares of Common Stock, whether now owned or acquired after the date of this Agreement, or file any registration statement under the Act with respect to the foregoing, other than as provided in such written commitment before the expiration of ___ days from the Closing Date, without the prior written consent of _______________.
(i) The Underwriters shall have received on the Closing Date an opinion of counsel that shall relate to each of the Selling Stockholders, dated the Closing Date, to the effect that:
(i) this Agreement has been duly executed and delivered by or on behalf of such Selling Stockholder, and is a valid and binding agreement of such Selling Stockholder; and
(ii) delivery of stock certificates representing the Shares to be sold by such Selling Stockholder, endorsed to the Underwriters and payment therefor pursuant to this Agreement will pass valid title to such Shares, free and clear of any adverse claim within the meaning of Section 8-102 of the New York Uniform Commercial Code, to each Underwriter who has purchased such Shares without notice of
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Execution Timethough made on, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date hereof and (including the filing of any document incorporated by reference thereinii) on, and as of though made on, the Closing Date, to the accuracy in all material respects of the statements of the Company Republic made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Final ProspectusPrior to the Closing Date, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus 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, or any notice that would prevent its use, as amended from time to time, or any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; and the Prospectus shall have been filed pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) of this Agreement.
(b) The Company Head or Acting Head of the Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyRepresentatives such counsel’s written opinion, dated the Closing Date, substantially to the effect that:
(i) The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Republic and the Agreements constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(iv) The Securities have been duly authorized, executed, issued and delivered by the Republic in accordance with the Fiscal Agency Agreement, and, assuming due authentication and delivery by the Fiscal Agent, the Securities constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(v) The obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Securities) of the Republic that will rank equal in right of payment with all other present and future unsecured and unsubordinated External Indebtedness of the Republic;
(vi) There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of any of the Agreements, the issue of the Securities as contemplated herein and in the Prospectus, or the performance or observance by the Republic of any of the terms of the Agreements or the Securities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the due execution, delivery and performance by the Republic of any of the Agreements or the Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for (I) Law 533 of November 11, 1999, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999, (III) the relevant portions of Law 80 of October 28, 1993, (IV) Law 781 of December 20, 2002, (V) Decree No. 2681 of December 29, 1993, (VI) authorization by Acts of the Comisión Interparlamentaria de Crédito Público adopted in its meetings held on July 21, 2003, December 18, 2003 and February 17, 2004 (VII) Resolution No. 2400 dated September 10, 2004 of the Ministerio de Hacienda y Crédito Público, (VIII) approval No. 3209 dated December 19, 2002 of the Consejo Nacional de Política Económica y Social (“CONPES”), (IX) approval No. 3262 dated January 9, 2004 of the CONPES, and (X) External Resolution No. 7 of November 14, 2003, issued by the Board of Directors of the Central Bank (each of which shall be listed in such counsel’s written opinion and copies of which shall be furnished to counsel to the Underwriters on or prior to the Closing Date);
(viii) To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not necessary that any Agreement or the Securities be registered, recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General of Public Credit of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 2400 of September 10, 2004, issued by the ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in the Diario Oficial of the Republic and (y) a summary of the Agreements in the Diario Unico de Contratación Pública of the Republic, to satisfy the requirement for such publications, (B) notice of the external indebtedness represented by the Securities to the Banco de la República and (C) in accordance with External Resolution No. 7 of November 14, 2003, issued by the Junta Directiva del Banco de la República, the delivery of written information from the Director General of Public Credit of the Ministerio de Hacienda y Crédito Público to the Junta Directiva del Banco de la República regarding the proposed issuance of the Securities, each of which shall be effected on or prior to the Closing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that, the Securities are held by a non-resident and non-domiciliary of the Republic.
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process; provided, that, except as provided under Article 177 of the Código Contencioso Administrativo, which does not override Articles 684 or 513 of the Código de Procedimiento Civil of the Republic, the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 15 hereof and in the Fiscal Agency Agreement and the Securities and the appointment of the Authorized Agent in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 17 of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 17 of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Fiscal Agency Agreement and the Securities as provided in Section 14 hereof, Section 17 of the Fiscal Agency Agreement and Section 16 of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 17 of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur”, subject to the provisions of Article 693 of the Código de Procedimiento Civil which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic and subject to compliance with the provisions of Article 694 of the Código de Procedimiento Civil. The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus, as amended or supplemented, and their filing with the Commission have been duly authorized by and on behalf of the Republic, and the Registration Statement, as amended, has been duly executed by and on behalf of the Republic, and the information in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, stated on the authority of public officials of the Republic has been stated in their official capacities thereunto duly authorized;
(xvii) The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Fiscal Agency Agreement, insofar as matters of Colombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Company has been duly incorporated and is validly existing as a corporation in good standing under Registration Statement, at the laws time it became effective, contained an untrue statement of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on fact or omitted to state a material fact required to be stated therein or necessary to make the Company and its subsidiaries, taken as a whole;statements therein not misleading; and
(B) insofar No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof 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 to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel may state that he or she is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Disclosure PackageProspectus (except to the extent expressly set forth in (xvii) above) and that such counsel makes no representation that such counsel has independently verified the accuracy, completeness and fairness of such statements (except as aforesaid), and that such counsel’s opinions referred to in this subsection (b) are limited to matters of Colombian law and, insofar as the statements contained opinion required by this subsection (b) is affected by matters of United States or New York law, it may be given in reliance upon the Final Prospectus under opinion required by subsection (c) of this Section 6 and that, insofar as the caption “Description foregoing opinions relate to the legality, validity, binding effect or enforceability of any agreement or obligation of the Global Notes” and Republic, such counsel has assumed that each party to such agreement or obligation other than the statements contained in Republic has satisfied those legal requirements that are applicable to it to the Base Prospectus under extent necessary to make such agreement or obligation enforceable against it.
(▇) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, United States counsel to the caption “Description of Republic, shall have furnished to the Debt Securities” purport Representatives their written opinion, dated the Closing Date, to describe specific provisions of the effect that:
(i) Assuming that the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) the Indenture has have been duly authorized, executed executed, authenticated, issued and delivered by against payment therefor, the CompanySecurities constitute valid, has been duly qualified under binding and enforceable obligations of the Trust Indenture ActRepublic, and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium insolvency and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to be applicable to the Company of any U.S. federal or California or Delaware court,
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Depositary Shares shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) hereof and as of the Closing Date, to the accuracy in all material respects of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final ProspectusProspectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; the final term sheet contemplated by Section 5(a) hereof, or and any supplement theretoother material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed in with the manner and Commission within the applicable time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, Statement or any notice that would prevent its use, as amended from time to time, part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or threatenedthreatened 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 Company shall have furnished to the RepresentativesRepresentative a certificate, dated the Closing Date, of the Company, signed by the principal financial or accounting officer of the Company, to the effect that, to the best of his knowledge after reasonable investigation:
(i) the opinion The representations and warranties of the General CounselCompany 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, an Associate General Counsel in all material respects;
(ii) No stop order suspending the effectiveness of the Registration Statement or a 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 Company 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 Company’s unsecured debt securities or preferred stock as described in Section 7(h)(i) and (B) no announcement has been made with respect to any rating accorded the Company’s unsecured debt securities or preferred stock or the Depositary Shares as described in Section 7(h)(ii).
(c) The Company shall have furnished to the Underwriters the opinion, dated the Closing Date, of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Esq., Senior Vice President and Deputy General Counsel of the Company, or an outside counsel for the Company, dated the Closing Date, substantially to the effect that:
(Ai) the The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of DelawareNorth Carolina, with full corporate power and authority under such laws to own its properties and to conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken as a wholeProspectus;
(Bii) insofar as the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description The shares of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) the Indenture has been duly authorized, executed and delivered Preferred Stock represented by the Company, has been duly qualified under Depositary Shares being delivered to the Trust Indenture Act, and constitutes a legal, valid and binding obligation enforceable against Underwriters at the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law); and the Securities Closing Date have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture issued and delivered to and paid for by the Underwriters as provided in accordance with the terms of this Agreement, will be legalduly and validly issued, valid fully paid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcynonassessable, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting will have the rights and remedies set forth in the Company’s Articles of creditors generally from time Incorporation, as amended to time in effectthe Closing Date, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law)including the Amendment;
(Diii) The Company has all corporate power and authority necessary to execute and deliver this Agreement, the Registration Statement Preferred Stock, the Depositary Shares and any amendments thereto have become effective under the ActDeposit Agreement and has all such power and authority to perform its obligations hereunder and thereunder; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization; the execution, approval or other action by, delivery and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation performance of the transactions contemplated herein, except such as have been obtained under the Actthis Agreement, the Exchange Act Preferred Stock, the Depositary Shares and the Trust Indenture Act Deposit Agreement by the Company and such as may be required under the blue sky laws of any jurisdiction in connection compliance with the purchase provisions hereof and distribution of thereof by the Securities and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or the fulfillment of the terms hereof Company will conflict with, result in not constitute a breach of, of or constitute a default under, the corporate charter or by-laws of the Company, or any material agreement, indenture or other instrument relating to indebtedness for money borrowed known to such counsel to which the Company 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 Company or any property of the Company, which breach or default would be reasonably likely to have a material adverse effect on the Company 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 or authority is required for the execution, delivery and performance of this Agreement, the Preferred Stock, the Depositary Shares and the Deposit Agreement by the Company except such as may be required under applicable state securities or “blue sky” laws or as have been duly made or obtained;
(iv) The Amendment has been duly filed with the Secretary of State of the State of North Carolina in accordance with the North Carolina Business Corporation Act and with all other governmental authorities where such filing is required in order to be effective under North Carolina law;
(v) 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;
(vi) The Deposit Agreement has been duly authorized, executed and delivered by the Company and, to such counsel’s knowledge, the terms Depositary and constitutes a valid and legally binding agreement of the Company and, to such counsel’s knowledge, the Depositary, enforceable against the Company and, to such counsel’s knowledge, the Depositary in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws relating to or affecting the enforcement of creditors’ rights generally and by general principles of equity;
(vii) The Preferred Stock, the Depositary Shares and the Deposit Agreement conform in all material respects to the descriptions thereof in the Prospectus; and
(viii) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Closing Date (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), (iii) and (vi) of this Section 7(c), he has no reason to believe (i) that any part of the Registration Statement or any further amendment thereto made by the Company 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), 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, the Prospectus or any further amendment or supplement thereto made by the Company 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 Material Agreementsamendment 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. As to matters governed by New York law, such counsel may rely upon the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP.
(d) The Representative shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Representative may reasonably require. As to matters governed by North Carolina law, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely upon the opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Esq., Senior Vice President and Deputy General Counsel of the Company, delivered pursuant to Section 7(c).
(e) On the Closing Date, KPMG LLP, as independent accountants of the Company, shall have furnished to the Representative a letter, dated on such date and in form and substance reasonably satisfactory to the Representative, 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 into the Prospectus, and confirming that they are independent accountants within the meaning of the Act and the Exchange Act, and the respective applicable published rules and regulations of the Commission thereunder.
(f) Subsequent to the Applicable Time, there shall not have occurred any change, or any development involving a prospective change, in or affecting the financial position, long-term debt, stockholders’ equity or results of operations of the Company and its consolidated subsidiaries that the Representative concludes, after consultation with the Company, is so material decree and adverse as to make it impractical or regulation known inadvisable to proceed with the public offering or the delivery of the Depositary Shares as contemplated by the Prospectus.
(g) The Company shall have furnished to the Representative such counsel further information, certificates and documents as they may reasonably request prior to the Closing Date.
(h) On or after the Applicable Time, (i) no downgrading shall have occurred in the rating accorded the Company’s unsecured debt securities or preferred stock by any “nationally recognized statistical rating organization”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s unsecured debt securities or preferred stock.
(i) The Company shall have complied with the provisions of the first sentence of Section 5(e) hereof with respect to the furnishing of prospectuses on the New York business day next succeeding the date of this Agreement. If any of the conditions specified in this Section 7 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 applicable in all material respects reasonably satisfactory in form and substance to the Representative and their counsel, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company of any U.S. federal in writing or California by telephone or Delaware court,telegraph confirmed in writing.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Shares to be delivered at the Time of Delivery shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Applicable Time, as of the date hereof and the Time of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing DateDelivery, to the accuracy in all material respects of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final ProspectusProspectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; the final term sheet contemplated by Section 5(a) hereof, or and any supplement theretoother material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed in with the manner and Commission within the applicable time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, Statement or any notice that would prevent its use, as amended from time to time, part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or threatened.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 to your reasonable satisfaction;
(b) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the date of such Time of Delivery, with respect to such matters as the Underwriters may reasonably require; ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely as to matters governed by Georgia Law, upon the opinions of the General Counsel of the Company and King & Spalding LLP delivered pursuant to Sections 6(c) and 6(d), respectively;
(c) The General Counsel of the Company shall have furnished to you his written opinion, dated the date of such Time of Delivery, in substantially the form of Annex I(a) hereto;
(d) King & Spalding LLP, counsel for the Company, shall have furnished to you their written opinion, dated the date of such Time of Delivery, in substantially the form of Annex I(b) hereto;
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, 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 Pricing Disclosure Package and the Prospectus;
(i) Neither the Company nor any of its Significant Subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any 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, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus;
(g) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization”, as that term is defined by the Commission for purposes of Section 3(a)(62) of the Exchange Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock;
(h) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus;
(i) The Company shall have filed the Articles of Amendment with the Secretary of State of the State of Georgia prior to the Time of Delivery; and
(j) The Company shall have furnished or caused to be furnished to you at the Representatives:
(i) the opinion Time of the General Counsel, an Associate General Counsel or a Deputy General Counsel Delivery certificates of the Company, or an outside counsel for the Company, dated the Closing Date, substantially to the effect that:
(A) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(B) insofar as the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations officers of the Company enforceable against satisfactory to you as to the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing accuracy of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, representations and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or the fulfillment of the terms hereof will conflict with, result in a breach of, or constitute a default under, the charter or by-laws warranties of the Company orherein at and as of such time, as to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to be applicable to performance by the Company of any U.S. federal all of its obligations hereunder to be performed at or California or Delaware court,prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Execution Timethough made on, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date hereof and (including the filing of any document incorporated by reference thereinii) on, and as of though made on, the Closing Date, to the accuracy in all material respects of the statements of the Company Republic made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Final ProspectusPrior to the Closing Date, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus 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, or any notice that would prevent its use, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) of this Agreement; and any final term sheet contemplated by Section 4(a) hereof, and any other material required to be filed by the Republic 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.
(b) The Company Head or Acting Head of the Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyRepresentatives such counsel’s written opinion, dated the Closing Date, substantially to the effect that:
(i) The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Republic and the Agreements constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(iv) The Securities have been duly authorized, executed, issued and delivered by the Republic in accordance with the Indenture, and, assuming due authentication and delivery by the Trustee, the Securities constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms entitled to the benefits provided by the Indenture;
(v) The obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Securities) of the Republic that will rank without any preference among themselves and equal in right of payment with all other present and future unsecured and unsubordinated External Indebtedness of the Republic;
(vi) There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of any of the Agreements, the issue of the Securities as contemplated herein and in the Prospectus, or the performance or observance by the Republic of any of the terms of the Agreements or the Securities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the due execution, delivery and performance by the Republic of any of the Agreements or the Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for, (I) the relevant portions of Law 80 of October 28, 1993, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999 (III) Law 533 of November 11, 1999, (IV) Law 781 of December 20, 2002, (V) Law 1366 of December 21, 2009, (VI) Law 1624 of April 29, 2013, (VII) Law 1771 of December 30, 2015, (VIII) Law 2073 of December 31, 2020, (IX) Law 2382 of July 16, 2024, (X) Decree No. 1068 of May 26, 2015, (XI) CONPES Document No. 4154 Departamento Nacional de Planeación, Ministerio de Hacienda y Crédito Público, dated July 23, 2025; (XII) evidence of publication of this Agreement in the Sistema Electrónico de Contratación Pública SECOP of the Republic, (XIII) Authorization by Act of the Comisión Interparlamentaria de Crédito Público adopted in its meetings held on August 25, 2025 and September 1, 2025 and (XIV) Resolution No. 2213 dated September 8, 2025 of the Ministerio de Hacienda y Crédito Público (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not necessary that any Agreement or the Securities be registered, recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General or Acting Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of Resolution No. 2213 dated September 8, 2025 issued by Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic, (B) filing of information before the Colombian Central Bank (Banco de la República) of public external indebtedness report on the relevant “International Indebtedness Granted to Residents Form” (Informe de Crédito Externo Otorgado a Residentes – Extracto de Credito Externo), resulting from the issuance of the Securities under the Indenture and (C) the publication of this Agreement in the Sistema Electrónico de Contratación Pública-SECOP of the Republic, to satisfy the requirement for such publications, each of which shall be effected on or prior to the Closing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that the Securities are held by a non-resident and non-domiciliary of the Republic;
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process, subject to the terms, conditions, limitations or exceptions under (i) Articles 192, 195, 298 and 299 of Law 1437 of 2011 (Código de Procedimiento Administrativo y de lo Contencioso Administrativo) as amended by Articles 80, 81 and 87 of Law 2080 of 2021; and (ii) Articles 593, 594 and 595 et al of Law 1564 of 2012 (Código General del Proceso); and Article 19 of Decree 111 of January 15, 1996, pursuant to which the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Indenture and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Indenture and the Securities as provided in Section 15 hereof, Section 9.7(a) of the Indenture and Section 16(a) of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur,” subject to the provisions of (i) Article 605 (et al) of Law 1564 of 2012 (Código General del Proceso), which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic; and (ii) subject to compliance with the provisions of Articles 606 and 607 of Law 1564 of 2012 (Código General del Proceso). The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic other than those governing judicial procedures, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly legalized copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus, as amended or supplemented, and their filing with the Commission have been duly authorized by and on behalf of the Republic, and the Registration Statement, as amended, has been duly executed by and on behalf of the Republic, and the information in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, stated on the authority of public officials of the Republic has been stated in their official capacities thereunto duly authorized;
(xvii) The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Indenture, insofar as matters of Colombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Company has been duly incorporated and is validly existing as a corporation in good standing under Registration Statement, at the laws respective times each part became effective, contained an untrue statement of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on fact or omitted to state a material fact required to be stated therein or necessary to make the Company and its subsidiaries, taken as a wholestatements therein not misleading;
(B) insofar No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof 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 to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(C) No information has come to such counsel’s attention that causes such counsel to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in 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 the circumstances under which they were made, not misleading. Such counsel may state that he or she is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Disclosure PackageProspectus (except to the extent expressly set forth in (xvii) above) and that such counsel makes no representation that such counsel has independently verified the accuracy, the statements contained in the Final Prospectus under the caption “Description completeness and fairness of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at lawexcept as aforesaid); 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 in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to be applicable to the Company of any U.S. federal or California or Delaware court,
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Execution Timethough made on, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date hereof and (including the filing of any document incorporated by reference thereinii) on, and as of though made on, the Closing Date, to the accuracy in all material respects of the statements of the Company Republic made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Final ProspectusPrior to the Closing Date, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus 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, or any notice that would prevent its use, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) of this Agreement; and any final term sheet contemplated by Section 4(a) hereof, and any other material required to be filed by the Republic 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.
(b) The Company Head or Acting Head of the Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyRepresentatives such counsel’s written opinion, dated the Closing Date, substantially to the effect that:
(i) The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Republic and the Agreements constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(iv) The Securities have been duly authorized, executed, issued and delivered by the Republic in accordance with the Indenture, and, assuming due authentication and delivery by the Trustee, the Securities constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms entitled to the benefits provided by the Indenture;
(v) The obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Securities) of the Republic that will rank equal in right of payment with all other present and future unsecured and unsubordinated External Indebtedness of the Republic;
(vi) There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of any of the Agreements, the issue of the Securities as contemplated herein and in the Prospectus, or the performance or observance by the Republic of any of the terms of the Agreements or the Securities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the due execution, delivery and performance by the Republic of any of the Agreements or the Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for (I) Law 533 of November 11, 1999, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999, (III) the relevant portions of Law 80 of October 28, 1993, (IV) Law 781 of December 20, 2002, (V) Law 1366 of December 21, 2009, (VI) Law 1624 of April 29, 2013, (VII) Decree No. 2681 of December 29, 1993, (VIII) Resolution No. 072 dated January 20, 2015 of the Ministerio de Hacienda y Crédito Público, (IX) CONPES Document No. 3781 DNP:SC-DEE MINHACIENDA, dated November 8, 2013 and CONPES Document No. 3818 DNP:SC-DEE MINHACIENDA, dated October 2, 2014; (X) Authorization by Act of the Comisión Interparlamentaria de Crédito Público adopted in its meeting held on October 22, 2014 and (XI) External Resolution No. 8 dated August 29, 2014 of the Board of Governors of the Central Bank of Colombia (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not necessary that any Agreement or the Securities be registered, recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General or Acting Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 072 dated January 20, 2015 issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) the publication of the Agreements in the Sistema Electrónico de Contratación Pública-SECOP of the Republic, to satisfy the requirement for such publications, (B) notice to the Banco de la República concerning the external indebtedness represented by the Securities and (C) in accordance with External Resolution No. 8 of August 29, 2014, issued by the Board of Governors of the Central Bank of Colombia, the delivery of written information from the Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público to the Board of Governors of the Central Bank of Colombia regarding the proposed issuance of the Securities, each of which shall be effected on or prior to the Closing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that the Securities are held by a non-resident and non-domiciliary of the Republic;
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process, subject to the terms, conditions, limitations or exceptions under (i) Articles 192, 195, 298 and 299 of Law 1437 of 2011 (Código de Procedimiento Administrativo y de lo Contencioso Administrativo); and (ii) Articles 684 and 513 of the Colombian Civil Procedure Code (Código de Procedimiento Civil), (which will be gradually superseded by Articles 593, 594 and 595 et al subject to the entry into force of Law 1564 of 2012 (Código General del Proceso) pursuant to the terms of article 627, paragraph 6 thereof) and Article 19 of Decree 111 of January 15, 1996, pursuant to which the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Indenture and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 9.7(b) of the Indenture and Section 15(b) of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 9.7(b) of the Indenture and Section 15(b) of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Indenture and the Securities as provided in Section 15 hereof, Section 9.7(a) of the Indenture and Section 15(a) of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 9.7(b) of the Indenture and Section 15(b) of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur,” subject to the provisions of (i) Article 693 of the Colombian Civil Procedure Code (Código de Procedimiento Civil), which will be gradually superseded by article 605 (et al) subject to the entry into force of Law 1564 of 2012 (Código General del Proceso) pursuant to the terms of article 627, paragraph 6 thereof), which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic; and (ii) subject to compliance with the provisions of Article 694 and 695 of the Colombian Civil Procedure Code (Código de Procedimiento Civil), (which will be gradually superseded by articles 606 and 607, respectively, subject to the entry into force of Law 1564 of 2012 pursuant to the terms of article 627, paragraph 6 thereof). The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus, as amended or supplemented, and their filing with the Commission have been duly authorized by and on behalf of the Republic, and the Registration Statement, as amended, has been duly executed by and on behalf of the Republic, and the information in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, stated on the authority of public officials of the Republic has been stated in their official capacities thereunto duly authorized;
(xvii) The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Indenture, insofar as matters of Colombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Company has been duly incorporated and is validly existing as a corporation in good standing under Registration Statement, at the laws respective times each part became effective, contained an untrue statement of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on fact or omitted to state a material fact required to be stated therein or necessary to make the Company and its subsidiaries, taken as a wholestatements therein not misleading;
(B) insofar No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof 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 to make the statements contained therein, in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description light of the Global Notes” and the statements contained in the Base Prospectus circumstances under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenturewhich they were made, such statements present in all material respects an accurate summary of such provisions;not misleading; and
(C) the Indenture No information 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, come to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to attention that causes such counsel to be applicable believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in the Company Pricing Disclosure Package, as of the Applicable Time, contained any U.S. federal untrue statement of a material fact or California or Delaware court,omitted to state
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Execution Timethough made on, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date hereof and (including the filing of any document incorporated by reference thereinii) on, and as of though made on, the Closing Date, to the accuracy in all material respects of the statements of the Company Republic made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Final ProspectusPrior to the Closing Date, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus 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, or any notice that would prevent its use, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) of this Agreement; and any final term sheet contemplated by Section 4(a) hereof, and any other material required to be filed by the Republic 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.
(b) The Company Head or Acting Head of the Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyRepresentatives such counsel’s written opinion, dated the Closing Date, substantially to the effect that:
(i) The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Republic and the Agreements constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(iv) The Securities have been duly authorized, executed, issued and delivered by the Republic in accordance with the Fiscal Agency Agreement, and, assuming due authentication and delivery by the Fiscal Agent, the Securities constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(v) The obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Securities) of the Republic that will rank equal in right of payment with all other present and future unsecured and unsubordinated External Indebtedness of the Republic;
(vi) There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of any of the Agreements, the issue of the Securities as contemplated herein and in the Prospectus, or the performance or observance by the Republic of any of the terms of the Agreements or the Securities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the due execution, delivery and performance by the Republic of any of the Agreements or the Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for (I) Law 533 of November 11, 1999, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999, (III) the relevant portions of Law 80 of October 28, 1993, (IV) Law 781 of December 20, 2002, (V) Decree No. 2681 of December 29, 1993, (VI) Resolution No. 2836 dated October 13, 2009 of the Ministerio de Hacienda y Crédito Público, (VII) CONPES Document No. 3580 MINHACIENDA, DNP:SC, dated April 2, 2009, (VIII) Authorization by Act of the Comisión Interparlamentaria de Crédito Público adopted in its meeting held on April 2, 2009 and (IX) External Resolution No. 3 dated April 8, 2009 of the Board of Governors of the Central Bank of Colombia (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not necessary that any Agreement or the Securities be registered, recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 2836 dated October 13, 2009 issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) a summary of the Agreements in the Diario Único de Contratación Pública of the Republic, to satisfy the requirement for such publications, (B) notice to the Banco de la República concerning the external indebtedness represented by the Securities and (C) in accordance with External Resolution No. 3 of April 8, 2009, issued by the Junta Directiva del Banco de la República, the delivery of written information from the Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público to the Junta Directiva del Banco de la República regarding the proposed issuance of the Securities, each of which shall be effected on or prior to the Closing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that the Securities are held by a non-resident and non-domiciliary of the Republic;
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process; provided, that, except as provided under Article 177 of the Código Contencioso Administrativo of the Republic, which does not override Articles 684 or 513 of the Código de Procedimiento Civil and Article 19 of Decree 111 of January 15, 1996 of the Republic, the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Fiscal Agency Agreement and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Fiscal Agency Agreement and the Securities as provided in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 16 of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur”, subject to the provisions of Article 693 of the Código de Procedimiento Civil which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic and subject to compliance with the provisions of Article 694 of the Código de Procedimiento Civil. The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus, as amended or supplemented, and their filing with the Commission have been duly authorized by and on behalf of the Republic, and the Registration Statement, as amended, has been duly executed by and on behalf of the Republic, and the information in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, stated on the authority of public officials of the Republic has been stated in their official capacities thereunto duly authorized;
(xvii) The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Fiscal Agency Agreement, insofar as matters of Colombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Company has been duly incorporated and is validly existing as a corporation in good standing under Registration Statement, at the laws respective times each part became effective, contained an untrue statement of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on fact or omitted to state a material fact required to be stated therein or necessary to make the Company and its subsidiaries, taken as a wholestatements therein not misleading;
(B) insofar No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof 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 to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(C) No information has come to such counsel’s attention that causes such counsel to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in 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 the circumstances under which they were made, not misleading. Such counsel may state that he or she is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Disclosure PackageProspectus (except to the extent expressly set forth in (xvii) above) and that such counsel makes no representation that such counsel has independently verified the accuracy, the statements contained in the Final Prospectus under the caption “Description completeness and fairness of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Actexcept as aforesaid), and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, to such counsel’s knowledgeopinions referred to in this subsection (b) are limited to matters of Colombian law and, insofar as the terms opinion required by this subsection (b) is affected by matters of any Material AgreementsUnited States or New York law, or any material decree or regulation known to such counsel to it may be applicable given in reliance upon the opinion required by subsection (c) of this Section 7 and that, insofar as the foregoing opinions relate to the Company of any U.S. federal or California or Delaware court,legality, validity, binding effec
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Shares to be delivered at each Time of Delivery shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Applicable Time, as of the date hereof and such Time of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing DateDelivery, to the accuracy in all material respects of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final ProspectusProspectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; the final term sheet contemplated by Section 5(a) hereof, or and any supplement theretoother material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed in with the manner and Commission within the applicable time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, Statement or any notice that would prevent its use, as amended from time to time, part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or threatened.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 to your reasonable satisfaction;
(b) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the date of such Time of Delivery, with respect to such matters as the Underwriters may reasonably require; ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely as to matters governed by Georgia Law, upon the opinions of King & Spalding LLP delivered pursuant to Section 6(d);
(c) The General Counsel of the Company shall have furnished to you his written opinion, dated the date of such Time of Delivery, in substantially the form of Annex I(a) hereto;
(d) King & Spalding LLP, counsel for the Company, shall have furnished to you their written opinion, dated the date of such Time of Delivery, in substantially the form of Annex I(b) hereto;
(e) At the Applicable Time and at such Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex II hereto (the executed copy of the letter delivered prior to the execution of this Agreement is attached as Annex II(a) hereto and a form of letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of such Time of Delivery is attached as Annex II(b) hereto);
(i) Neither the Company nor any of its Significant Subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any 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, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus;
(g) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization”, as that term is defined by the Commission for purposes of Section 3(a)(62) of the Exchange Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock;
(h) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus;
(i) The Company shall have complied with the provisions of Section 5(d) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement;
(j) The Company shall have filed the Articles of Amendment with the Secretary of State of the State of Georgia prior to the First Time of Delivery; and
(k) The Company shall have furnished or caused to the Representatives:
(i) the opinion be furnished to you at such Time of the General Counsel, an Associate General Counsel or a Deputy General Counsel Delivery certificates of the Company, or an outside counsel for the Company, dated the Closing Date, substantially to the effect that:
(A) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(B) insofar as the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations officers of the Company enforceable against satisfactory to you as to the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing accuracy of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, representations and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or the fulfillment of the terms hereof will conflict with, result in a breach of, or constitute a default under, the charter or by-laws warranties of the Company orherein at and as of such time, as to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to be applicable to performance by the Company of any U.S. federal all of its obligations hereunder to be performed at or California or Delaware court,prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters hereunder, as to purchase the Securities Shares to be delivered at each Time of Delivery, shall be subject subject, in their discretion, to the accuracy in condition that all material respects of the representations and warranties on the part and other statements of each of the Company contained and the Selling Stockholders herein as of the Execution Timeare, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) at and as of such Time of Delivery, true and correct, the Closing Date, to the accuracy in all material respects of the statements condition that each of the Company made in any certificates delivered by and the Company pursuant to the provisions hereof, to the performance in Selling Stockholders shall each have performed all material respects by the Company of its and their respective obligations hereunder theretofore to be performed, and to the following additional conditions:
(a) The Final Prospectus, or any supplement thereto, U.S. Prospectus shall have been filed in with the manner and Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all materials 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 period prescribed for such filing by Rule 424(b)433; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by • P.M., [ • ] time, on the date of this Agreement; 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; no stop order suspending or preventing the use of the US Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; no order having the effect of ceasing or suspending the distribution of the Shares shall have been issued and no proceeding for that purpose shall have been initiated or threatened by any Canadian Securities Regulatory Authority or the TSX; and all requests for additional information on the part of the Commission or any Canadian Securities Regulatory Authority shall have been complied with to your reasonable satisfaction;
(b) The Canadian Prospectus shall have been filed with the Canadian Securities Regulatory Authorities in accordance with Ontario Securities Commission Rule 41-501 — General Prospectus Requirements and the Company shall have obtained a final MRRS decision document issued by the Ontario Securities Commission, in its capacity as principal regulator under MRRS, evidencing that final receipts of the Canadian Securities Regulatory Authorities have been issued in respect of the Canadian Prospectus;
(c) Gowling ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, shall have furnished to the Underwriters and their counsel a written opinion or opinions in the form attached as Annex II(a) hereto, dated such Time of Delivery;
(d) ▇▇▇▇▇▇ & Whitney LLP, U.S. counsel for the Company, shall have furnished to the Underwriters and their counsel their written opinion or opinions in the form attached as Annex II(b) hereto, dated such Time of Delivery;
(e) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel for the Selling Stockholders, shall have furnished to the Underwriters and their counsel their written opinion or opinions in the form attached as Annex II(c) hereto, dated such Time of Delivery;
(f) On the date of the U.S. Prospectus at a time prior to the execution of this Agreement, on the date of the Canadian Prospectus prior to filing thereof, at • a.m., [ • ] time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, KPMG LLP shall have furnished to the Underwriters and their counsel a letter or letters, dated the respective dates of delivery hereof, updating the comfort letter delivered pursuant to Section 5(b)(vi) hereof to a date not later than the date of such Closing;
(g) None of the Company or any of the Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectuses any 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, otherwise than as set forth or contemplated in the Prospectuses, and (ii) since the respective dates as of which information is given in the Prospectuses there shall not have been any change in the capital stock or long-term debt of the Company or any material adverse change in the capital stock or long term debt of any of the Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and the Subsidiaries, taken as a whole, in each case, otherwise than as set forth or contemplated in the Prospectuses, the effect of which, in any such case described in clause (i) or (ii), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being Delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectuses;
(h) Subsequent to the Applicable Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and within the time period Prospectuses, there shall not have been any change in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Company 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 Prospectuses, and the Underwriters shall not have become aware of any undisclosed material adverse information relating to the Company and the Subsidiaries, or other adverse material development, the effect of which, in any case referred to herein, 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 Shares as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Prospectuses;
(i) The Shares to be sold at such Time of Delivery shall have been duly listed for trading on the TSX as of the opening of trading on the date of the Time of Delivery, subject only to compliance with minimum distribution requirements and the Company providing to the TSX certain required routine documentation;
(j) The Company has obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of the persons listed in Schedule III hereto, in form and substance satisfactory to the Underwriters;
(k) The Company shall have complied with the provisions of Section 5(d) hereof with respect to the furnishing of Prospectuses on the Business Day next succeeding the date of this Agreement;
(l) No order having the effect of ceasing or suspending the Distribution or Offering shall have been issued or proceedings therefor initiated or threatened by Rule 433; the Commission, any Canadian Securities Regulatory Authority, the TSX or any other stock exchange, and no stop order suspending the effectiveness of the Registration Statement, or any notice that would prevent its use, as amended from time to time, Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened., and any request on the part of the Commission or any Canadian Securities Regulatory Authority for additional information shall have been complied with to the reasonable satisfaction of the Underwriters;
(bm) The Company shall have furnished or caused to be furnished to RBC at such Time of Delivery certificates of officers of the Company addressed to the Underwriters and their counsel, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to such Time of Delivery, as to the matters set forth in subsections (a) and (m) of this Section 8 and as to such other matters as you may reasonably request;
(n) The Company shall have furnished to RBC certificates dated the RepresentativesClosing Date, signed by appropriate officers of the Company, addressed to the Underwriters and their counsel, with respect to the charter, articles and by-laws of the Company, all resolutions of the stockholders and the board of directors of the Company and other corporate action relating to this Agreement and to the authorization, issue, sale and delivery of the Shares, the grant of the Optional Shares, the incumbency and specimen signatures of signing officers and with respect to such other matters as the Underwriters may reasonably request;
(o) The Company shall have furnished to RBC a certificate of the Company, signed by the Chief Executive Officer and Chief Financial Officer of the Company in their capacities as such and not individually, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectuses and this Agreement and that:
(i) the opinion representations, warranties and covenants of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the Company, dated the Closing Date, substantially to the effect that:
(A) the Company has been duly incorporated in this Agreement are true and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(B) insofar as the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present correct in all material respects an accurate summary on and as of such provisionsthe Closing Date with the same effect as if made on the Closing Date and the Company has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(Cii) 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use Statement has been issued and no proceedings for that purpose have been instituted or, to such officer's knowledge, threatened;
(iii) no order, ruling or determination having the effect of suspending the sale or ceasing the trading of the Shares or any other securities of the Company has been issued or made by any Governmental Authority and is continuing in effect and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company threatened by any Governmental Authority; and
(iv) since • , 2006, 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, except as set forth in or contemplated under in the ActProspectuses.
(p) Each Selling Stockholder shall have furnished to RBC a certificate, signed by each Selling Stockholder, dated the Closing Date, to the effect that such Selling Stockholder has carefully examined the Registration Statement, the Prospectuses and this Agreement and that the representations, warranties and covenants of such Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date and that such Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(Eq) this Agreement has been duly authorizedThe Underwriters shall have received on the Closing Date such other certificates, executed statutory declarations, agreements or materials that are customary in public offerings, in form and delivered by substance reasonably satisfactory to the Underwriters and their counsel, as the Underwriters and their counsel may reasonably request; and
(r) Gowling ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ counsel for the Company;
(F) no authorization, approval shall have furnished to you such written opinion or other action byopinions, dated such Time of Delivery and no notice toaddressed to the Underwriters and their counsel, consent ofin form and substance satisfactory to you, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for regarding compliance with all the consummation laws of the transactions contemplated herein, except such as have been obtained under Province of Québec relating to the Act, use of the Exchange Act and the Trust Indenture Act and such as may be required under the blue sky laws of any jurisdiction French language in connection with the purchase documents (including the Canadian Prospectus, any amendment or supplement thereto, forms of order and distribution confirmation and certificates representing the Shares) to be delivered to purchasers of the Securities and such other approvals (Shares in the Province of Québec. If any of the conditions specified in such opinion) as this Section 8 shall not have been obtained; and
(G) none fulfilled as and when provided in this Agreement, or if any of the issue opinions and sale certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the SecuritiesUnderwriters hereunder may be terminated by RBC at, or at any time prior to, a Time of Delivery, without liability on the consummation of any other part of the transactions herein contemplated Underwriters or the fulfillment of Company, except for the terms hereof will conflict with, result in a breach of, or constitute a default under, the charter or by-laws of expenses to be borne by the Company or, to and the Underwriters as provided in Section 7 hereof and the indemnity and contribution agreements as provided in Section 9 hereof. Notice of such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to cancellation shall be applicable given to the Company of any U.S. federal and each Selling Stockholder in writing or California by telephone or Delaware court,facsimile confirmed in writing.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Execution Timethough made on, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date hereof and (including the filing of any document incorporated by reference thereinii) on, and as of though made on, the Closing Date, to the accuracy in all material respects of the statements of the Company Republic made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Final ProspectusPrior to the Closing Date, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus 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, or any notice that would prevent its use, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) of this Agreement; and any final term sheet contemplated by Section 4(a) hereof, and any other material required to be filed by the Republic 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.
(b) The Company Head or Acting Head of the Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyRepresentatives such counsel’s written opinion, dated the Closing Date, substantially to the effect that:
(i) The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Republic and the Agreements constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(iv) The Securities have been duly authorized, executed, issued and delivered by the Republic in accordance with the Indenture, and, assuming due authentication and delivery by the Trustee, the Securities constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms entitled to the benefits provided by the Indenture;
(v) The obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Securities) of the Republic that will rank without any preference among themselves and equal in right of payment with all other present and future unsecured and unsubordinated External Indebtedness of the Republic;
(vi) There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of any of the Agreements, the issue of the Securities as contemplated herein and in the Prospectus, or the performance or observance by the Republic of any of the terms of the Agreements or the Securities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the due execution, delivery and performance by the Republic of any of the Agreements or the Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for, (I) the relevant portions of Law 80 of October 28, 1993, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999 (III) Law 533 of November 11, 1999, (IV) Law 781 of December 20, 2002, (V) Law 1366 of December 21, 2009, (VI) Law 1624 of April 29, 2013, (VII) Law 1771 of December 30, 2015, (VIII) Law 2073 of December 31, 2020, (IX) Law 2382 of July 16, 2024, (X) Decree No. 1068 of May 26, 2015, (XI) CONPES Document No. [•] Departamento Nacional de Planeación, Ministerio de Hacienda y Crédito Público, dated [•]; (XII) evidence of publication of this Agreement in the Sistema Electrónico de Contratación Pública SECOP of the Republic, (XIII) Authorization by Act of the Comisión Interparlamentaria de Crédito Público adopted in its meeting held on [•] and (XIV) Resolution No. [•] dated [•] of the Ministerio de Hacienda y Crédito Público (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not necessary that any Agreement or the Securities be registered, recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General or Acting Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of Resolution No. [•] dated [•] issued by Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic, (B) filing of information before the Colombian Central Bank (Banco de la República) of public external indebtedness report on the relevant “International Indebtedness Granted to Residents Form” (Informe de Crédito Externo Otorgado a Residentes – Extracto de Credito Externo), resulting from the issuance of the Securities under the Indenture and (C) the publication of this Agreement in the Sistema Electrónico de Contratación Pública-SECOP of the Republic, to satisfy the requirement for such publications, each of which shall be effected on or prior to the Closing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that the Securities are held by a non-resident and non-domiciliary of the Republic;
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process, subject to the terms, conditions, limitations or exceptions under (i) Articles 192, 195, 298 and 299 of Law 1437 of 2011 (Código de Procedimiento Administrativo y de lo Contencioso Administrativo) as amended by Articles 80, 81 and 87 of Law 2080 of 2021; and (ii) Articles 593, 594 and 595 et al of Law 1564 of 2012 (Código General del Proceso); and Article 19 of Decree 111 of January 15, 1996, pursuant to which the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Indenture and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Indenture and the Securities as provided in Section 15 hereof, Section 9.7(a) of the Indenture and Section 16(a) of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur,” subject to the provisions of (i) Article 605 (et al) of Law 1564 of 2012 (Código General del Proceso), which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic; and (ii) subject to compliance with the provisions of Articles 606 and 607 of Law 1564 of 2012 (Código General del Proceso). The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic other than those governing judicial procedures, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly legalized copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus, as amended or supplemented, and their filing with the Commission have been duly authorized by and on behalf of the Republic, and the Registration Statement, as amended, has been duly executed by and on behalf of the Republic, and the information in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, stated on the authority of public officials of the Republic has been stated in their official capacities thereunto duly authorized;
(xvii) The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Indenture, insofar as matters of Colombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Company has been duly incorporated and is validly existing as a corporation in good standing under Registration Statement, at the laws respective times each part became effective, contained an untrue statement of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on fact or omitted to state a material fact required to be stated therein or necessary to make the Company and its subsidiaries, taken as a wholestatements therein not misleading;
(B) insofar No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof 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 to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(C) No information has come to such counsel’s attention that causes such counsel to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in 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 the circumstances under which they were made, not misleading. Such counsel may state that he or she is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Disclosure PackageProspectus (except to the extent expressly set forth in (xvii) above) and that such counsel makes no representation that such counsel has independently verified the accuracy, the statements contained in the Final Prospectus under the caption “Description completeness and fairness of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Actexcept as aforesaid), and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known opinions referred to such counsel to be applicable to the Company of any U.S. federal or California or Delaware court,in this subsection (b) are lim
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters Underwriters, as to purchase Securities to be purchased at the Securities Time of Delivery, shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) hereof and at and as of the Closing DateTime of Delivery, to the accuracy in all material respects of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final ProspectusProspectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a); the final term sheet contemplated by Section 5(A)(a), or and any supplement theretoother material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed in with the manner and Commission within the applicable time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, Statement or any notice that would prevent its use, as amended from time to time, part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or threatened.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 issued and no proceeding for that purpose 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 to your reasonable satisfaction;
(b) The Company Shearman & Sterling LLP, counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated the Representatives:Time of Delivery, in form and substance satisfactory to you, with respect to such matters as the Underwriters may reasonably require, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(ic) the opinion of the General Counsel, an Associate The Company’s General Counsel or a Deputy General Counsel such other internal counsel as shall be reasonably acceptable to the Underwriters shall have furnished to you such counsel’s written opinion, to the effect set forth in Exhibit A, dated the Time of the CompanyDelivery, or an outside in form and substance satisfactory to you;
(d) ▇▇▇▇▇▇▇ LLP, Maryland counsel for the Company, dated the Closing Dateshall have furnished to you their written opinion, substantially to the effect that:
(A) set forth in Exhibit B, dated the Company has been duly incorporated Time of Delivery, in form and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full corporate power and authority substance satisfactory to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken as a wholeyou;
(B) insofar as the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to be applicable to the Company of any U.S. federal or California or Delaware court,
Appears in 1 contract
Sources: Underwriting Agreement (Huntington Bancshares Inc/Md)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters hereunder, as to purchase the Securities Units to be delivered at each Time of Delivery, shall be subject subject, in their discretion, to the accuracy in condition that all material respects of the representations and warranties on the part and other statements of the Company contained herein as of the Execution Timeare, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) at and as of the Closing DateApplicable Time and such Time of Delivery, to true and correct, the accuracy in all material respects of the statements of condition that the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in shall have performed all material respects by the Company of its obligations hereunder theretofore to be performed, and to the following additional conditions:
(a) The Final Prospectus, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in with the manner and Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433; and if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 P.M., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement, Statement or any notice that would prevent its use, as amended from time to time, part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or threatened.
(b) The Company shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the Company, dated the Closing Date, substantially to the effect that:
(A) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(B) insofar as the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) the Indenture has been duly authorized, executed and delivered threatened by the Company, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law)Commission; 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 in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending or preventing the effectiveness use of the Registration Statement, as amended, Pricing Prospectus or any notice that would prevent its use has been issued and no proceedings for that purpose Prospectus shall have been instituted initiated or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered threatened by the Company;
(F) no authorization, approval or other action by, Commission; and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required all requests for additional information on the consummation part of the transactions contemplated herein, except such as Commission shall have been obtained under the Act, the Exchange Act and the Trust Indenture Act and such as may be required under the blue sky laws of any jurisdiction in connection complied with the purchase and distribution of the Securities and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to be applicable to the Company of any U.S. federal or California or Delaware court,your reasonable satisfaction;
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities pursuant to a Terms Agreement shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) Applicable Time and as of the Closing Date, to the accuracy in all material respects of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereofof this Section, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditions:
(ai) The Canadian Final Prospectus, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures, (ii) the U.S. Final Prospectus shall have been filed with the Commission pursuant to General Instruction II.L. of Form F-10 under the Act, in the manner and each case, within the applicable time period prescribed for such filing and in accordance with Section 4(a) hereof and (iii) the final term sheet contemplated by Section 4(a) hereof, 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 period prescribed for such filing by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, Statement or any notice that would prevent its use, as amended from time to time, part thereof shall have been issued and no proceedings order preventing or suspending the use of any prospectus (including any Issuer Free Writing Prospectus) relating to the Securities shall have been issued and no proceeding for that any such purpose shall have been instituted initiated or threatenedthreatened by the Commission or the Reviewing Authority.
(b) The Company shall have furnished to the Representatives:
(i) the opinion of the General Counselrequested and caused ▇▇▇▇▇ Day, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside U.S. counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing DateDate and addressed to the Representatives, substantially to the effect that:
(i) The Agreement has been executed and delivered by the Company to the extent such execution and delivery are governed by the laws of the State of New York.
(ii) The Indenture constitutes a valid and binding obligation of the Company under New York law, enforceable against the Company in accordance with its terms. The Indenture has been qualified under the Trust Indenture Act.
(iii) The Securities, when authenticated by the Trustee in accordance with the terms of the Indenture and delivered against payment therefor in accordance with the terms of the Agreement, will constitute valid and binding obligations of the Company under New York law, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture.
(iv) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance of the Agreement, the Collateral Documents and the Indenture by the Company, or in connection with the issuance or sale of the Securities by the Company to the Underwriters, except (i) such as may be required under state securities or “blue sky laws” or (ii) such as have been obtained or made under the Act, the Exchange Act or the Trust Indenture Act.
(v) The statements contained in the Disclosure Package and the U.S. Final Prospectus under the captions “Description of Debt Securities,” “Description of the Notes” and “Certain Income Tax Consequences-Material U.S. Federal Income Tax Consequences,” insofar as such statements purport to summarize legal matters or provisions of documents referred to therein, present fair summaries of such legal matters and documents in all material respects.
(vi) The Company is not required and, solely after giving effect to the offering and the sale of the Securities and the application of the net proceeds from such sale as described in the Disclosure Package and the U.S. Final Prospectus under the caption “Use of Proceeds”, will not be, required to register as an “investment company,” as such term is defined in the Investment Company Act of 1940.
(vii) The (i) execution, delivery and performance of the Agreement, the Collateral Documents and the Indenture by the Company, (ii) issuance and sale of the Securities by the Company, and (iii) compliance with the terms and provisions thereof by the Company will not violate any law or regulation known to such counsel to be generally applicable to transactions of this type (other than federal or state securities or “blue sky” laws, as to which such counsel need not express an opinion in this paragraph), or any order or decree of any court, arbitrator or governmental agency that is binding upon the Company or its properties or violate or result in a default under any agreement to which the Company is a party or bound (such opinion being limited (a) to those orders and decrees identified on Exhibit A attached to such counsel’s opinion and to those agreements identified on Exhibit B attached to such counsel’s opinion and (b) that such counsel need not express an opinion with respect to any violation or default (1) not readily ascertainable from the face of any such order, decree or agreement, (2) arising under or based upon any cross-default provision insofar as it relates to a violation or default under an agreement not identified on Exhibit B attached to such counsel’s opinion or (3) arising as a result of any violation of or default under any agreement or covenant by failure to comply with any financial or numerical requirement requiring computation).
(viii) Under the laws of the State of New York relating to personal jurisdiction, (i) pursuant to Section 13 of the Agreement and Section 113 of the Indenture, the Company has (A) validly submitted to the non-exclusive personal jurisdiction of any state or federal court in New York City in any action arising out of or based upon the Agreement or the Indenture or the transactions contemplated therein, (B) to the extent permitted by law, validly and irrevocably waived any objection to the venue of a proceeding in any such court, and (C) validly appointed CT Corporation System as its authorized agent for service of process, and (ii) service of process in the manner set forth in Section 13 of the Basic Provisions and Section 113 of the Indenture will be effective insofar as the law of the State of New York is concerned to confer valid non-exclusive personal jurisdiction of such court over the Company.
(ix) The Registration Statement, at its most recent effective date under the Act, the Form F-X, as of its date, and the U.S. Final Prospectus, as of its date, complied as to form in all material respects with the requirements of the Act and the rules and regulations of the Commission thereunder, except that such counsel need not express a view with respect to (i) the financial statements, financial schedules and other financial data included or incorporated by reference therein or (ii) the information referred to under the caption “Experts” in the U.S. Final Prospectus as having been included or incorporated by reference therein on the authority of KPMG LLP, ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ as experts. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are 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. In addition, such counsel shall state that it has participated in the preparation of the Preliminary Final Prospectus prepared for use in the United States and the term sheet prepared and to be filed pursuant to Section 4(a) of this Agreement (collectively, the “Pricing Disclosure Package”) and the U.S. Final Prospectus and has had discussions with certain officers, directors and employees of the Company, with representatives of Canadian counsel to the Company, with representatives of the Company’s independent registered public accounting firm, with the Underwriters and with counsel to the Underwriters concerning the information contained or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the U.S. Final Prospectus, and although such counsel has not independently verified and is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness (except as and to the extent set forth in paragraph (v) above) of the information contained or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the U.S. Final Prospectus, based upon such counsel’s participation and discussions set forth above, however, no facts have come to such counsel’s attention that cause it to believe that the Registration Statement, as of its most recent effective date under the Act, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, that the Pricing Disclosure Package, as of the Applicable Time, included 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 U.S. Final Prospectus, as of its date or on the Closing Date, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that such counsel need not express a view with respect to (i) the financial statements, financial schedules and other financial data included or incorporated by reference therein or (ii) the information referred to under the caption “Experts” in the U.S. Final Prospectus as having been included or incorporated by reference therein on the authority of KPMG LLP, ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ as experts.
(c) ▇▇▇▇▇▇ ▇▇▇▇▇▇ Gervais LLP, Canadian counsel for the Company, shall have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) Each subsidiary listed on Annex B to the Terms Agreement (individually a “Canadian Subsidiary” and, collectively the “Canadian Subsidiaries”) is a corporation or partnership duly incorporated or organized, respectively, validly existing and in good standing (with respect to the filing of required reports) under the laws of the jurisdiction in which it is incorporated or organized, as the case may be. The Company and each of the Canadian Subsidiaries have all necessary corporate or partnership power and authority, as applicable, to own and hold their respective properties and conduct their respective businesses as described in each of the Canadian Final Prospectus and the Disclosure Package and have taken all requisite corporate or partnership action, as applicable, and have received and are in compliance with all governmental, judicial and other authorizations, approvals and orders, if any, that are necessary to enter into and perform this Agreement, the Indenture, each of the Collateral Documents, if any, and the Securities.
(ii) The Company has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of Business Corporations Act (Alberta) (the State of Delaware“ABCA”), with full has corporate power and authority to own own, lease and operate its properties and conduct its business as described in each of the Canadian Final Prospectus and the Disclosure Package Package, and Final Prospectus the Company and each Canadian Subsidiary is duly qualified as amended an extra-provincial or supplementedforeign corporation or partnership to transact business in each jurisdiction in Canada in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where such the failure to so qualify would not reasonably be expected to have a material adverse effect on the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole;.
(Biii) insofar To such counsel’s knowledge (without having made any special inquiries in this regard), other than as set forth in the statements contained in Canadian Final Prospectus and the Disclosure Package, there are no legal or governmental proceedings pending to which the statements contained Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which such counsel has reasonable cause to believe would, singly or in the Final Prospectus under aggregate, have a material adverse effect on the caption “Description condition (financial or otherwise), earnings, business or properties of the Global Notes” Company and its subsidiaries, taken as a whole and, to such counsel’s knowledge (without having made any special inquiries in this regard), no such proceedings are threatened or contemplated by governmental authorities or threatened by others.
(iv) This Agreement has been duly authorized and, to the statements contained extent execution and delivery are matters governed by the laws of the Province of Alberta or the federal laws of Canada applicable therein, executed and delivered by the Company.
(v) The Securities have been duly authorized by the Company and, assuming that the Securities have been duly authenticated by the Trustee in the Base Prospectus manner described in the Indenture and under New York law, the caption “Description Securities have been, to the extent issuance, execution and delivery are matters governed by the laws of the Debt Securities” purport to describe specific provisions Province of Alberta or the federal laws of Canada applicable therein, issued, executed and delivered by the Company; the Securities or are in the Indenture, such statements present form contemplated by the Indenture and conform in all material respects an accurate summary to the description thereof in each of such provisions;the Canadian Final Prospectus and the Disclosure Package.
(Cvi) The Indenture has been duly authorized and, to the extent execution and delivery are matters governed by the laws of the Province of Alberta or the federal laws of Canada applicable therein, executed and delivered by the Company; the Indenture conforms in all material respects to the description thereof in each of the Canadian Final Prospectus and the Disclosure Package.
(vii) Each of the Collateral Documents has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Actdelivered, and constitutes a legal, valid and binding obligation instrument enforceable against the Company and its Canadian Subsidiaries, as applicable, in accordance with its terms (subject subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and or other similar laws relating to or affecting the creditors’ rights and remedies of creditors generally from time to time in effect, effect and subject to general principles of equity, regardless ).
(viii) The issue and sale of whether such enforceability is considered in a proceeding in equity or at law); the Securities and the Securities have been duly authorized andcompliance by the Company and its Canadian Subsidiaries, when executed and authenticated in accordance as applicable, with all of the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this AgreementSecurities, will be legal, valid and binding obligations each of the Company enforceable against Collateral Documents, if any, the Company in accordance with their terms (subject to applicable bankruptcyIndenture, insolvency, fraudulent transfer, reorganization, arrangement, moratorium the Agreement and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions therein contemplated herein, except such as have been obtained under the Act, the Exchange Act (A) do not and the Trust Indenture Act and such as may be required under the blue sky laws of any jurisdiction in connection will not conflict with the purchase and distribution of the Securities and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or the fulfillment of the terms hereof will conflict with, result in a breach or violation of provisions of the constating documents, by-laws or partnership agreements, as applicable, of the Company or any Canadian Subsidiary, (B) to such counsel’s knowledge (without having made any special inquiries in this regard) and assuming that the proceeds from the sale of the Securities are used for the purposes described under the heading “Use of Proceeds” in each of the Canadian Final Prospectus and the Disclosure Package, do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default underunder or result in the creation or imposition of any lien, the charter charge or by-laws encumbrance upon any properties or assets of the Company or, to such counsel’s knowledge, the terms of any Material Agreements, or any material decree of its Canadian Subsidiaries under any indenture, mortgage, deed of trust, loan agreement or regulation known other agreement or instrument that is described or referred to such counsel in each of the Canadian Final Prospectus and the Disclosure Package to be applicable to which the Company or any of its Canadian Subsidiaries is a party or by which the Company or any U.S. federal of its Canadian Subsidiaries is bound or California to which any of the assets of the Company or Delaware court,any of its Canadian Subsidiaries is subject except where such default in this clause (B) would not, s
Appears in 1 contract
Sources: Terms Agreement (Husky Energy Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Shares on the Closing Date as provided herein shall be subject (i) to the accuracy in condition that all material respects of the representations and warranties on the part of the Company contained and the Selling Stockholders herein as of the Execution Timeare, at and as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) hereof and as of the Closing Date, to true and correct, (ii) the accuracy in all material respects of the statements of condition that the Company made in any certificates delivered by and the Company pursuant to the provisions hereof, to the performance in Selling Stockholders shall have performed all material respects by the Company of its and their obligations hereunder theretofore to be performed, and to (iii) the following additional conditions:
(a) The Final Prospectus, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in with the manner and Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, or any notice that would prevent its use, as amended from time to time, Statement shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or threatened.to the knowledge of the Company threatened by the Commission; no stop order suspending or preventing the use of the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or to the knowledge of the Company threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the Underwriters’ reasonable satisfaction;
(b) The Company ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Underwriters, shall have furnished to the Representatives:Underwriters such written opinion or opinions, dated as of the Closing Date, in form and substance reasonably satisfactory to the Underwriters, with respect to such matters as may be reasonably requested by the Underwriters;
(c) The Underwriters shall have received the opinions of (i) the opinion of the General CounselWachtell, an Associate General Counsel or a Deputy General Counsel of the CompanyLipton, or an outside ▇▇▇▇▇ & ▇▇▇▇, counsel for the Company, dated as of the Closing Date, substantially the form of which is attached as Annex II, and (ii) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Deputy General Counsel — Finance/Securities of the Company, the form of which is attached hereto as Annex III;
(d) The respective counsel for each of the Selling Stockholders, as indicated in Schedule B hereto, each shall have furnished to the Underwriters their written opinion with respect to each of the Selling Stockholders for whom they are acting as counsel (a form of each such opinion is attached as Annex IV-A, Annex IV-B and Annex IV-C hereto), dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters;
(e) On the date hereof, Ernst & Young LLP, independent public accountants for the Company, shall have furnished to the Underwriters a letter dated as of the date hereof addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters, with respect to the audited and unaudited financial statements and certain financial information contained in the Registration Statement, the Preliminary Prospectus and the Prospectus;
(f) On the Closing Date, Ernst & Young LLP, independent public accountants for the Company, shall have furnished to the Underwriters a letter dated as of the Closing Date, in form and substance reasonably satisfactory to the Underwriters, to the effect that:that they reaffirm the statements made in the letter furnished by them pursuant to subsection (e) of this Section 8, except that the specified date referred to therein for the carrying out of procedures shall be no more than three business days prior to the Closing Date;
(Ag) On or after the Applicable Time, there shall not have occurred any Material Adverse Change that in the judgment of the Underwriters is so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Preliminary Prospectus and the Prospectus;
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities by any “nationally recognized statistical rating organization”, as defined in Section 3(a)(62) of the Exchange Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities;
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading of the Company’s securities on the Nasdaq Global Select Market; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the Company has been duly incorporated and is validly existing as outbreak or escalation of hostilities involving the United States or the declaration by the United States of a corporation national emergency or war or (v) the occurrence of any other calamity or crisis or any change in good standing under financial markets in the laws United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the State Underwriters is material and adverse and makes it impracticable or inadvisable to proceed with the public offering or the delivery of Delawarethe Shares on the terms and in the manner contemplated by this Agreement, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken as a wholeProspectus;
(Bj) insofar as The Shares to be sold at the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law); and the Securities Closing Date shall have been duly authorized and, when executed and authenticated in accordance with listed on the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtainedNasdaq Global Select Market; and
(Gk) none The Company and the Selling Stockholders shall have furnished or caused to be furnished to the Underwriters at the Closing Date certificates of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or the fulfillment of the terms hereof will conflict with, result in a breach of, or constitute a default under, the charter or by-laws officers of the Company orand of the Selling Stockholders, respectively, or certificates of the trustees of the Selling Stockholder if the Selling Stockholder is a trust, reasonably satisfactory to the Underwriters as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Closing Date, as to the performance by the Company and the Selling Stockholders, respectively, of all of their respective obligations hereunder to be performed at or prior to such counsel’s knowledgeClosing Date, the terms of any Material Agreements, or any material decree or regulation known as to such counsel other matters as the Underwriters may reasonably request, and the Company shall have furnished or caused to be applicable furnished certificates as to the Company matters set forth in subsections (a), (g) and (h) of any U.S. federal or California or Delaware court,this Section 8.
Appears in 1 contract
Sources: Underwriting Agreement (Td Ameritrade Holding Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Firm Notes and the Option Notes, as the case may be, shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein in this Underwriting Agreement as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of and any document incorporated by reference therein) and as of the Option Closing DateDate pursuant to Section 3 hereof, to the accuracy in all material respects of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder under this Underwriting Agreement and to the following additional conditions:
(a) The Final closing of the offering of the Offered Shares shall have occurred prior to or simultaneously with the closing of the offering of the Offered Notes.
(b) The Prospectus, or and any supplement thereto, shall have been filed in the manner and within the time period required under by Rule 424(b), and ; [the final term sheet contemplated by Section 5(b) hereto and] any Issuer Free Writing Prospectus [other] material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed in with the manner and Commission within the applicable time period required periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, Statement or the ADR Registration Statement or any notice objecting to their use shall have been issued and no proceedings for that would prevent purpose shall have been instituted or threatened, and the Folleto has been filed in the manner and within the time period established by the Spanish Act as developed by secondary legislation and no stop order suspending the effectiveness of the Folleto or any notice objecting to its use, as amended from time to time, use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(bc) KPMG Auditores, S.L. (“KPMG”) has issued by not later than 11:59 p.m. (Madrid time) on the date hereof its special report for the purposes of articles 417 and 511 of the Spanish Capital Companies Act confirming the fairness of the Offered Notes’ conversion ratio and its adjustment provisions and that the [figures] contained in the report of the Board of Directors of the Company on the terms of conversion are, in their view, reasonable.
(d) The Company shall have requested and caused DLA Piper Spain, S.L.U. and DLA Piper LLP (US), counsel for the Company with respect to Spanish and U.S. law, respectively, to have furnished to the Representatives their opinion or opinions, as the case may be, dated the Closing Date and addressed to the Representatives:, to the effect that (subject to assumptions and qualifications reasonably acceptable to the Representatives):
(i) the opinion Registration Statement and the ADR Registration Statement have become effective under the Act; any required filing of the General CounselProspectus, an Associate General Counsel or a Deputy General Counsel and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the CompanyRegistration Statement or the ADR Registration Statement or any notice objecting to their use has been issued, no proceedings for that purpose have been instituted or an outside threatened, and the Registration Statement and the ADR Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel for need express no opinion) comply as to form in all material respects with the Company, dated applicable requirements of the Act and the Trust Indenture Act and the respective rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended the Registration Statement or the ADR Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus as of the date thereof and on the Closing DateDate 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, substantially 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);
(ii) such counsel has no reason to believe that the Disclosure Package, as amended or supplemented at the Execution Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion);
(iii) the Documento de Registro was approved and registered by the CNMV pursuant to the effect that:Spanish Act on July 12, 2012, the Company filed with the CNMV the Relevant Fact Notice on the details of the Offering on [·], the Nota sobre las Acciones was approved and registered by the CNMV pursuant to the Spanish Act on [·]; to the knowledge of such counsel, no stop order suspending the effectiveness of the Folleto has been issued, no proceedings for that purpose have been instituted or threatened and the Folleto (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Spanish Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Folleto was last deemed amended the Spanish Documents 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 Folleto as of the date thereof and on the Closing Date included or include any untrue statement of a material fact or omitted or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (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);
(Aiv) each of the Company and the Specified Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delawarejurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package Package, the Prospectus and Final Prospectus the Folleto, and is duly qualified to do business as amended or supplemented, a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification except where such the failure to be so qualified or in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a wholeMaterial Adverse Effect;
(Bv) insofar to the best of our knowledge, the Company is not the subject of any bankruptcy or insolvency proceeding of any nature and no steps have been taken for its liquidation, dissolution, declaration of insolvency (“concurso”) or analogous circumstance under the laws of Spain and no liquidator, administrator, receiver or analogous person has been appointed over all or any of the assets of the Company;
(vi) each of the Lock-Up Agreement Signatories (as hereinafter defined) that is a corporate entity has been duly incorporated and is validly existing as a [corporation] in good standing under the statements laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to enter into the Lock-Up Agreement, and each of the Lock-Up Agreement Signatories that is an individual has due authority to enter into the Lock-Up Agreement;
(vii) all the outstanding shares of capital stock of each Specified Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Disclosure Package and the Prospectus, all outstanding shares of capital stock of each such Specified Subsidiary are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest or, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(viii) the Company’s authorized share capital is as set forth in the Disclosure Package, the Prospectus and the Spanish Documents; the capital stock of the Company conforms in all material respects to the description thereof contained in the Disclosure Package, the statements contained in Prospectus and the Final Prospectus under Spanish Documents; the caption “Description outstanding Class A Shares and Class B Shares have been duly and validly authorized and issued and are fully paid and nonassessable; the Underlying Shares issuable or deliverable upon conversion of the Global Notes” Offered Notes have been duly and the statements contained in the Base Prospectus under the caption “Description validly authorized and, when issued and/or delivered upon conversion of the Debt Securities” purport to describe specific provisions Offered Notes and, if any of the Securities or Underlying Shares are new Class B Shares, when the Indenturecapital increase relating to such new Class B Shares has been duly registered with the Mercantile Registry and such new Class B Shares have been duly registered with Iberclear, such statements present the Underlying Shares will be validly issued, fully paid and nonassessable; the Underlying Shares will conform in all material respects an accurate summary to the description of the Class B Shares contained in the Registration Statement, the ADR Registration Statement, the Disclosure Package, the Prospectus and the Spanish Documents; the Board of Directors of the Company has duly and validly adopted resolutions reserving the maximum number of Underlying Shares for issuance upon conversion of the Offered Notes, authorizing the application for listing of such provisionsUnderlying Shares on the Madrid and Barcelona Stock Exchanges and authorizing the application for listing of the related ADSs on the Nasdaq Global Select Market; the holders of outstanding shares of capital stock of the Company and of bonds convertible into Class A Shares or Class B Shares of the Company are not entitled to preemptive or other rights to subscribe for the Offered Notes or the Underlying Shares other than those as have been duly excluded in accordance with Spanish law; except as set forth in the Disclosure Package, the Prospectus and the Spanish Documents, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding and there are no commitments by the Company to create, issue, sell or otherwise dispose of, shares of capital stock of or ownership interests in the Company; there are no restrictions on the free transferability of the Underlying Shares set out in the constitutional documents of the Company or under Spanish law or regulation; there are no restrictions on subsequent transfers of the Underlying Shares; and, the Offered Notes have been approved for listing on the Nasdaq Global Select Market subject to official notice for issuance;
(Cix) the Indenture has been duly authorized, executed and delivered by the Companydelivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding obligation instrument enforceable against the Company in accordance with its terms (subject subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and or other similar laws relating to or affecting the creditors’ rights and remedies of creditors generally from time to time in effect, effect and subject to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether such enforceability is considered in a proceeding in equity or at law)) and the Offered Notes will be convertible into Class B Shares or ADSs, as applicable, in accordance with the terms of the Indenture; and the Securities Offered Notes have been duly and validly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of pursuant to this Underwriting Agreement, will be constitute legal, valid and binding obligations of the Company enforceable against entitled to the benefits of the Indenture; and the statements set forth under the headings “Description of the Notes,” “Description of American Depositary Shares” and “Description of Share Capital” in the Disclosure Package and the Final Prospectus, insofar as such statements purport to summarize certain provisions of the Offered Notes, the Indenture, the Class B Shares and the ADSs, provide a fair summary of such provisions;
(x) the Company’s obligations under the Offered Notes (other than to pay interest, including optionally outstanding payments as described in the Disclosure Package and the Prospectus) constitute direct, unsecured and subordinated obligations of the Company in accordance with their terms and the Offered Notes will rank at all times pari passu without any preference or priority among themselves and will (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally such exceptions as are from time to time mandatory under Spanish law) rank (a) senior in effectpriority only to the rights and claims against the Company of the holders of “junior securities;” (b) pari passu with the rights and claims against the Company of the holders of any “parity securities;” and (c) junior to the rights and claims against the Company of the Company’s “senior creditors,” each as defined under the caption “Description of the Notes—Ranking” in the Disclosure Package and the Prospectus. However, the Company’s obligations under the Offered Notes to pay interest, including “optionally outstanding payments” (as defined in the Disclosure Package and subject to general principles of equitythe Prospectus), regardless of whether such enforceability is considered in a proceeding in equity or at law)will be the Company’s unsecured, unsubordinated obligations and rank pari passu with all the Company’s other unsecured, unsubordinated obligations;
(Dxi) the Registration Statement insofar as matters of Spanish law, United States Federal law and any amendments thereto have become effective under the Act; any required filing of the Base ProspectusNew York State law are concerned, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, there is no stop order suspending pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the effectiveness Company or any of its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement, as amendedthe ADR Registration Statement or the Spanish Documents which is not adequately disclosed in the Disclosure Package, the Prospectus and the Spanish Documents, and there is no franchise, contract or other document of a character required to be described in the Registration Statement, the ADR Registration Statement, the Disclosure Package, the Prospectus or the Spanish Documents, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted to be filed as an exhibit thereto, which is not described or are pending or contemplated filed as required; the descriptions contained in the Prospectus under the Actheading “Taxation,” insofar as such statements summarize the legal conclusions applicable to the offering of the Offered Notes and the Underlying Shares, constitute fair and accurate summaries of such legal matters; and the statements in the Prospectus under the headings “Business—Intellectual Property,” “Business—Information Technology,” “Business—Legal Proceedings,” “Regulation,” “Description of Share Capital,” “Description of American Depositary Shares,” “Description of the Notes” and “Description of the Share Lending Agreements” in the Documento de Registro (as of its date) in Sections 2, 5.2, 6, 8, 10, 11, 19, 20, 21 and 22, and in the Nota sobre las Acciones (as of its date) in Sections 3, 4, 5, 6, 7.3, 10, 11.1 and 11.3, 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;
(Exii) this Underwriting Agreement has been duly authorized, executed and delivered by the Company;
(Fxiii) no authorizationthe Stock Loan Agreements have been duly authorized, approval or other action byexecuted and delivered by the Company and the obligations assumed thereunder by the Company are legal, valid, binding and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation enforceable obligations of the transactions contemplated herein, except such as Company;
(xiv) the Lock-Up Agreements have been obtained under duly authorized, executed and delivered by the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; andLock-Up Agreement Signatories;
(Gxv) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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 oris not and, to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to be applicable to the Company of any U.S. federal or California or Delaware court,after gi
Appears in 1 contract
Sources: Underwriting Agreement (Abengoa Sa)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time, as date hereof and the Time of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing DateDelivery, to the accuracy in all material respects of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final ProspectusProspectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; any final term sheet contemplated by Section 5(a) hereof, or and any supplement theretoother material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed in with the manner and Commission within the applicable time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, Statement or any notice that would prevent its use, as amended from time to time, part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or threatenedthreatened 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, to the Company’s knowledge, threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with.
(b) The Company shall have furnished to the RepresentativesRepresentatives a certificate, dated the Time of Delivery, of the Company, signed by the principal financial officer, principal accounting officer or treasurer of the Company, to the effect that, to the best of his or her knowledge after reasonable investigation:
(i) the opinion The representations and warranties of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the Company, dated the Closing Date, substantially to the effect that:
(A) the Company has been duly incorporated in this Agreement are true and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(B) insofar as the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present correct in all material respects an accurate summary on and as of such provisionsthe Time of Delivery with the same effect as if made on the Time of Delivery 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 Time of Delivery, in all material respects;
(Cii) 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no No stop order suspending the effectiveness of the Registration Statement, as amended, Statement or any notice that would prevent its 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 or and are pending or, to the knowledge of such officer, have been threatened as of such date; and
(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 Company and its consolidated subsidiaries, except as set forth in or contemplated by the Prospectus.
(c) The Company shall have furnished to the Underwriters the opinion, dated the Time of Delivery, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, Esq., Executive Vice President and Chief Legal Officer of the Company, substantially in the form attached as Exhibit A.
(d) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, shall have furnished to the Underwriters an opinion and letter, dated the Time of Delivery, substantially in the form attached as Exhibit B.
(e) ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have furnished to the Underwriters an opinion, dated the Time of Delivery, to the effect that the statements made in the Pricing Prospectus and the Prospectus under the Act;heading “Taxation – Puerto Rico Taxation,” insofar as they purport to constitute summaries of Puerto Rico income tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters described therein in all material respects.
(Ef) The Representatives shall have received from ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Time of Delivery, with respect to such matters as the Representatives may reasonably require.
(g) On the date hereof prior to the execution of this Agreement has been duly authorizedand the Time of Delivery, executed PricewaterhouseCoopers LLP, as independent registered public accountants of the Company, shall have furnished to the Representatives a letter, dated on such date and delivered in form and substance reasonably 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 or incorporated by reference into the Prospectus, and confirming that they are independent accountants within the meaning of the Act and the Exchange Act, and the respective applicable published rules and regulations of the Commission thereunder.
(h) Subsequent to the Applicable Time, there shall not have occurred any change, or any development involving a prospective change, in or affecting the financial position, long-term debt, stockholders’ equity or results of operations of the Company and its consolidated subsidiaries that the Representatives reasonably conclude, after consultation with the Company, is so material and adverse as to make it impractical or inadvisable to proceed with the public offering or the delivery of the Securities as contemplated by the Company;Prospectus.
(Fi) The Company shall have furnished to the Representatives such further information, certificates and documents as they may reasonably request prior to the Time of Delivery.
(j) On or after the Applicable Time, (i) no authorizationdowngrading shall have occurred in the rating accorded the Company’s unsecured debt securities or preferred stock by any “nationally recognized statistical rating organization”, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency as that term is required defined by the Commission for the consummation purposes of the transactions contemplated herein, except such as have been obtained Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Exchange Act Company’s unsecured debt securities or preferred stock.
(k) The Company shall have complied with the provisions of the first sentence of Section 5(e) hereof with respect to the furnishing of prospectuses on the Business Day next succeeding the date of this Agreement. If any of the conditions specified in this Section 8 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the Trust Indenture Act opinions and such as 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 required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or the fulfillment of the terms hereof will conflict with, result in a breach ofcancelled at, or constitute a default underat any time prior to, such Time of Delivery by the charter or by-laws Representatives. Notice of the Company or, to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to cancellation shall be applicable given to the Company of any U.S. federal in writing or California by telephone or Delaware court,telegraph confirmed in writing.
Appears in 1 contract
Sources: Underwriting Agreement (Popular Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities hereunder shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) hereof and as of the Closing Date, to the accuracy in all of any material respects of the statements of the Company made in any certificates delivered by certificates, opinions, affidavits, written statements or letters furnished to the Company Representative(s) or to counsel to the Underwriters identified on Schedule I hereto (“Underwriters’ Counsel”) pursuant to the provisions hereof, to the performance in all material respects by the Company of its respective obligations hereunder and to each of the following additional conditionsconditions precedent:
(a) The Final Prospectus, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in with the manner and Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filings pursuant to the Rules and Regulations and all filings required by Rule 433; 433 or Rule 424(b) shall have been made within the periods required by such Rules, and no stop such filings will have been made without the consent of the Representative(s).
(b) No order suspending the effectiveness of the Registration StatementStatement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any notice that would prevent its use, as amended from time to time, Issuer Free Writing Prospectus shall have been issued be in effect and no proceedings for that 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 instituted received by the Company; and any requests for additional information on the part of the Commission (to be included in the Registration Statement or threatenedthe Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative(s).
(bc) The Company shall have furnished to the Representatives:
(iRepresentative(s) the opinion of the General CounselChief Legal Officer, an Associate General Counsel or a Deputy an Associate General Counsel of the Company, or an outside counsel for addressed to the Company, Underwriters and dated the Closing Date, substantially to the effect that:
(Ai) the 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 State or territory thereof (a “Domestic Significant Subsidiary”) is a duly incorporated and validly existing corporation in good standing under the laws law of the State its jurisdiction of Delawareincorporation, with and has full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package Prospectus. Each of the Company and Final Prospectus the Domestic Significant Subsidiaries is duly qualified to do business as amended a foreign corporation, is in good standing in its jurisdiction of incorporation and is duly registered as a broker-dealer, broker, dealer or supplementedinvestment 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 such the failure to so qualify, to be in good standing or to register would not have a material adverse effect on 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 its subsidiariesclear of any claims, taken as a whole;liens, encumbrances and security interests.
(Biii) insofar as the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present The Shares conform in all material respects an accurate summary of such provisions;to the descriptions thereof contained in the Prospectus.
(Civ) The Company has an authorized capitalization as set forth in the Indenture Prospectus, and all of the issued shares of capital stock of the Company (including the Shares 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 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 execution and delivery of this Agreement and the issuance of the Shares by the Company or compliance by the Company with all of the provisions of this 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, has been duly qualified under ; the Trust Indenture Act, execution and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms delivery of this Agreement, and the issuance of the Shares will be legalnot conflict with, valid and binding obligations or result in the creation or imposition of any lien, charge or encumbrance upon any of the assets of the Company enforceable against 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 in accordance with their terms (subject to applicable bankruptcyor the Domestic Significant Subsidiaries is a party or bound, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered result in a proceeding 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 equity or at law);the aggregate, to have a Material Adverse Effect.
(Dxi) the The Registration Statement and any amendments thereto have has become effective under the Securities Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectusand, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; 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.
(xii) The Registration Statement, the Prospectus and each amendment thereof or supplement thereto (except that no opinion need be expressed as amendedto 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 Shares have been duly authorized and, upon payment and delivery in accordance with this Agreement, will be validly issued, fully paid and nonassessable. 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 as of the Closing Date, with respect to the issuance and sale of the Shares, 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 notice 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 as of the Closing Date, to the effect that would prevent 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:
(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 use 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 threatened; and no notice of objection of the Commission to the use of the Registration Statement or contemplated under any post-effective amendment thereto pursuant to Rule 401(g)(2) of the Act;
(E) this Agreement Rules and Regulations has been duly authorized, executed and delivered received by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(Giii) none (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 issue and sale 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 Securitiescircumstances under which they were made, not misleading, (y) the consummation Prospectus did not, as of its date, and does not contain any other 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 transactions herein contemplated or circumstances under which they were made, not misleading, and (z) since the fulfillment applicable Effective Date 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, to such counsel’s knowledge, the terms of Registration Statement there has not occurred any Material Agreements, or any material decree or regulation known to such counsel event required to be applicable to the Company of any U.S. federal set forth in an amended or California or Delaware court,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 Securities Normal WITS shall be subject to the accuracy in all material respects of the representations and warranties on the part of each of the Company Guarantor and the Trust contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) hereof and as of the Closing Date, to the accuracy in all material respects of the statements of the Company Guarantor and the Trust made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by each of the Company Guarantor and the Trust of its obligations hereunder and to the following additional conditions:
(a) The Final ProspectusProspectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in 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 Guarantor or any supplement theretothe Trust pursuant to Rule 433(d) under the Act, shall have been filed in with the manner and Commission within the applicable time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, Statement or any notice that would prevent its use, as amended from time to time, 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 Representatives a certificate, dated the Closing Date, 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 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, 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 shall have been instituted and are pending or threatenedhave 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 Normal WITS as described in Section 6(l)(ii).
(bc) The Company Trust shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or Representatives a Deputy General Counsel of the Company, or an outside counsel for the Companycertificate, dated the Closing Date, substantially 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 with the same effect as if made on the Closing Date 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, 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, of R▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Esq., Senior Vice President and Deputy General Counsel of the Guarantor, to the effect that:
(Ai) the Company The Guarantor has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of DelawareNorth Carolina, with full corporate power and authority under such laws to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken as a wholeProspectus;
(Bii) insofar as The Junior Subordinated Notes have been duly authorized, executed, issued and delivered and, assuming authentication by the statements contained Indenture Trustee in the Disclosure Packagemanner contemplated in its certificate, the statements contained in the Final Prospectus under the caption “Description constitute valid and legally binding obligations of the Global Notes” Guarantor entitled to the benefits provided by the Indenture; and the statements contained in Junior Subordinated Notes and the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present Indenture conform in all material respects an accurate summary of such provisionsto the descriptions thereof in the Prospectus;
(Ciii) the The Indenture has been duly authorized, executed and delivered by the CompanyGuarantor, has been duly qualified under the Trust Indenture Act, Act and constitutes a legal, valid and legally binding obligation of the Guarantor enforceable against the Company in accordance with its terms (terms, subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws of general applicability relating to or affecting the creditors’ rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law); and the Securities have principles;
(iv) The Guarantee has been duly authorized andauthorized, when executed and authenticated 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 the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreementits terms, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws of general applicability relating to or affecting the creditors’ rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered equity principles; and the Guarantee conforms in a proceeding all material respects to the designation thereof in equity or at law)the Prospectus;
(Dv) The Trust Agreement has been duly authorized, executed and delivered by the Registration Statement and any amendments thereto have become effective Guarantor, has been duly qualified under the Act; any required filing Trust Indenture Act and constitutes a valid and legally binding obligation of the Base 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) Each of the Stock Purchase Contract Agreement, any Issuer Free Writing the Collateral Agreement and the Remarketing Agreement has been duly authorized, executed and delivered by the Guarantor 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 each such Agreement conforms in all material respects to the description thereof in the Prospectus;
(vii) This Agreement has been duly authorized, any Preliminary Prospectus or executed and delivered by the Final Prospectus, and any supplements thereto, Guarantor;
(viii) The issuance by the Guarantor of Preferred Stock pursuant to Rule 424(b) or Rule 433 has been made in the manner Stock Purchase Contract Agreement and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge Guarantor’s articles of such counsel, no stop order suspending the effectiveness of the Registration Statementincorporation, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose duly authorized and, when certificates evidencing the shares of Preferred Stock have been instituted or are pending or executed by the Guarantor and authenticated by the Guarantor’s transfer agent in the manner contemplated under by the ActStock Purchase Contract Agreement and delivered on the Stock Purchase Date, such shares will be validly issued, fully paid and non-assessable; and the Preferred Stock when issued will conform in all material respects to the description thereof in the Prospectus;
(Eix) 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 the Remarketing Agreement, and has all such power and authority to perform its obligations thereunder (including issuing Preferred Stock pursuant to the Stock Purchase Contract Agreement); this Agreement has been duly authorized, executed and delivered by the Company;
Guarantor; the execution, delivery and performance of this Agreement, the Indenture, the Junior Subordinated Notes, the Other Guarantor Transaction Agreements and the Remarketing Agreement by the Guarantor and compliance with the provisions hereof and thereof by the Guarantor will not (For, with respect to the execution and delivery of the Indenture and the Other Guarantor Transaction Agreements, did not) no authorizationconstitute a breach of, approval or default under, the corporate charter or by-laws of the Guarantor, or any material agreement, indenture or other action byinstrument 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 notice toconsent, consent of, authorization or order of, or filing or registration with, any U.S. federal court or California or Delaware governmental authority or agency is (or, with respect to the execution and delivery of the Indenture, was) required for the consummation execution, delivery and performance of this Agreement, the transactions contemplated hereinIndenture, the Junior Subordinated Notes, the Other Guarantor Transaction Agreements or the Remarketing Agreement by the Guarantor, except such as may be required under applicable state securities or “blue sky” laws or as have been obtained under duly made or obtained;
(x) The Normal WITS have been duly authorized by the ActGuarantor as Depositor on behalf of the Trust, and the Normal WITS conform in all material respects to the description thereof in the Prospectus; and
(xi) The Registration Statement, the Exchange Prospectus and any further amendments and supplements thereto, as applicable, made by the Guarantor prior to the Closing Date (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), (iv), (vi) and (viii) 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 (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, 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, the Property Trustee or the Collateral Agent, upon the certificate or certificates of such entity, (ii) as to matters governed by New York law, upon the opinion of Cadwalader, W▇▇▇▇▇▇▇▇▇ & T▇▇▇ LLP, delivered pursuant to Section 6(e), and (iii) as to matters governed by Delaware law, upon the opinion of R▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., delivered pursuant to Section 6(f).
(e) Cadwalader, W▇▇▇▇▇▇▇▇▇ & T▇▇▇ LLP, special counsel to the Guarantor, shall have furnished to the Underwriters an opinion, dated the Closing Date, to the effect that:
(i) The Junior Subordinated Notes have been duly authorized and executed by the Guarantor and, when the Junior Subordinated Notes have been duly authenticated and delivered by the Indenture Trustee in the manner contemplated in the Indenture and paid for by the Trust, the Junior Subordinated Notes will be legal, valid and binding obligations of the Guarantor and entitled to the benefits provided by the Indenture.
(ii) Each of the Underwriting Agreement, the Indenture, the Guarantee, the Trust Agreement, the Stock Purchase Contract Agreement and the Collateral Agreement have been duly authorized, executed and delivered by the Guarantor and the Remarketing Agreement has been duly authorized by the Guarantor.
(iii) Each of the Indenture, the Guarantee, the Trust Agreement, the Stock Purchase Contract Agreement and the Collateral Agreement constitutes a legal, valid and binding agreement of the Guarantor, enforceable against the Guarantor in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, receivership or other laws relating to or affecting creditors’ rights generally, and to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity), and except that the enforcement of rights with respect to indemnification and contribution obligations, and provisions (a) purporting to waive or limit rights to trial by jury, oral amendments to written agreements or rights of set-off, or (b) relating to submission to jurisdiction, venue or service of process, may be limited by applicable law or considerations of public policy.
(iv) The compliance by the Guarantor with the provisions of the Underwriting Agreement, the Indenture, the Junior Subordinated Notes, the Guarantee, the Trust Agreement, the Stock Purchase Contract Agreement, the Collateral Agreement and the Remarketing Agreement, and the consummation by the Company of the transactions therein contemplated, (a) do not require any Governmental Approval to be obtained on the part of the Guarantor, except those that may be required under the state securities or blue sky laws laws, the National Association of any jurisdiction in connection with Securities Dealers, Inc., the purchase and distribution of the Securities New York Stock Exchange and such other approvals (specified in such opinion) as that have been obtained; obtained and
, to our knowledge, are in effect, (Gb) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or the fulfillment of the terms hereof will conflict with, do not result in a violation of any Applicable Laws applicable to the Guarantor, and (c) do not breach or result in a violation of, or constitute a default under, the charter or by-laws of the Company orany judgment, to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation order known to such counsel to be us that is applicable to the Company of Guarantor and, pursuant to any U.S. federal Applicable Laws, is issued by any Governmental Authority having jurisdiction over the Guarantor or California or Delaware court,its properties (it being understood that we express no
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Execution Timethough made on, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date hereof and (including the filing of any document incorporated by reference thereinii) on, and as of though made on, the Closing Date, to the accuracy in all material respects of the statements of the Company Republic made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Final ProspectusPrior to the Closing Date, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus 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, or any notice that would prevent its use, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) of this Agreement; and any final term sheet contemplated by Section 4(a) hereof, and any other material required to be filed by the Republic 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.
(b) The Company Head or Acting Head of the Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyRepresentatives such counsel’s written opinion, dated the Closing Date, substantially to the effect that:
(i) The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Republic and the Agreements constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(iv) The Securities have been duly authorized, executed, issued and delivered by the Republic in accordance with the Indenture, and, assuming due authentication and delivery by the Trustee, the Securities constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms entitled to the benefits provided by the Indenture;
(v) The obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Securities) of the Republic that will rank without any preference among themselves and equal in right of payment with all other present and future unsecured and unsubordinated External Indebtedness of the Republic;
(vi) There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of any of the Agreements, the issue of the Securities as contemplated herein and in the Prospectus, or the performance or observance by the Republic of any of the terms of the Agreements or the Securities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the due execution, delivery and performance by the Republic of any of the Agreements or the Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for, (I) the relevant portions of Law 80 of October 28, 1993, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999 (III) Law 533 of November 11, 1999, (IV) Law 781 of December 20, 2002, (V) Law 1366 of December 21, 2009, (VI) Law 1624 of April 29, 2013, (VII) Law 1771 of December 30, 2015, (VIII) Law 2073 of December 31, 2020, (IX) Law 2382 of July 16, 2024, (X) Decree No. 1068 of May 26, 2015, (XI) CONPES Document No. 4154 Departamento Nacional de Planeación, Ministerio de Hacienda y Crédito Público, dated July 23, 2025 and CONPES No. 4163 Departamento Nacional de Planeación, Ministerio de Hacienda y Crédito Público, dated October 14, 2025; (XII) evidence of publication of this Agreement in the Sistema Electrónico de Contratación Pública SECOP of the Republic, (XIII) Authorization by Act of the Comisión Interparlamentaria de Crédito Público adopted in its meetings held on October 28, 2025, November 4, 2025 and November 7, 2025 and (XIV) Resolution No. 2922 dated November 14, 2025 of the Ministerio de Hacienda y Crédito Público (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not necessary that any Agreement or the Securities be registered, recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General or Acting Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of Resolution No. 2922 dated November 14, 2025 issued by Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic, (B) filing of information before the Colombian Central Bank (Banco de la República) of public external indebtedness report on the relevant “International Indebtedness Granted to Residents Form” (Informe de Crédito Externo Otorgado a Residentes – Extracto de Credito Externo), resulting from the issuance of the Securities under the Indenture and (C) the publication of this Agreement in the Sistema Electrónico de Contratación Pública-SECOP of the Republic, to satisfy the requirement for such publications, each of which shall be effected on or prior to the Closing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that the Securities are held by a non-resident and non-domiciliary of the Republic;
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process, subject to the terms, conditions, limitations or exceptions under (i) Articles 192, 195, 298 and 299 of Law 1437 of 2011 (Código de Procedimiento Administrativo y de lo Contencioso Administrativo) as amended by Articles 80, 81 and 87 of Law 2080 of 2021; and (ii) Articles 593, 594 and 595 et al of Law 1564 of 2012 (Código General del Proceso); and Article 19 of Decree 111 of January 15, 1996, pursuant to which the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Indenture and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Indenture and the Securities as provided in Section 15 hereof, Section 9.7(a) of the Indenture and Section 16(a) of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur,” subject to the provisions of (i) Article 605 (et al) of Law 1564 of 2012 (Código General del Proceso), which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic; and (ii) subject to compliance with the provisions of Articles 606 and 607 of Law 1564 of 2012 (Código General del Proceso). The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic other than those governing judicial procedures, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly legalized copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus, as amended or supplemented, and their filing with the Commission have been duly authorized by and on behalf of the Republic, and the Registration Statement, as amended, has been duly executed by and on behalf of the Republic, and the information in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, stated on the authority of public officials of the Republic has been stated in their official capacities thereunto duly authorized;
(xvii) The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Indenture, insofar as matters of Colombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Company has been duly incorporated and is validly existing as a corporation in good standing under Registration Statement, at the laws respective times each part became effective, contained an untrue statement of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on fact or omitted to state a material fact required to be stated therein or necessary to make the Company and its subsidiaries, taken as a wholestatements therein not misleading;
(B) insofar No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof 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 to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(C) No information has come to such counsel’s attention that causes such counsel to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in 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 the circumstances under which they were made, not misleading. Such counsel may state that he or she is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; except to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice extent expressly set forth in (xvii) above) and that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to be applicable to the Company of any U.S. federal or California or Delaware court,makes no r
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of and any document incorporated by reference therein) and as of the Closing Datesettlement date pursuant to Section 3 hereof, to the accuracy in all material respects of the statements of the Company and the Selling Stockholders made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, or and any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, Statement or any notice that would prevent objecting to its use, as amended from time to time, use shall have been issued issued, and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives:
(i) the opinion of the General Counselrequested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing DateDate and addressed to the Representatives, substantially to the effect that:
(Ai) the Registration Statement was declared effective under the Act; the Prospectus was filed pursuant to Rule 424(b) on April 12, 2007; to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or are pending or threatened by the SEC; the Common Stock has been accepted for listing on the Nasdaq Global Market; the Registration Statement as of its effective date, the Preliminary Prospectus as of its date, and the Prospectus as of its date appeared on its fact to be appropriately responsive in all material respects to the requirements of the Act (except counsel expresses no statement or believe as to Regulation S-T); to the knowledge of such counsel, there are no documents that are required to be filed as exhibits to the Registration Statement that are not so filed or any documents that are required to be summarized in the Preliminary Prospectus or the Prospectus that are not so summarized; and no facts have come to such counsel’s attention that have caused such counsel to believe that on the Effective Date the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus as of its date and as of 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 historical and pro forma financial statements and related schedules, including the notes and schedules thereto and the auditor’s report thereon, any other financial or accounting data included in, or excluded from, the Registration Statement or the Prospectus or the Disclosure Package, and representations and warranties and other statements of fact included in the exhibits to the Registration Statement, as to which such counsel need express no opinion);
(ii) such counsel has no reason to believe that the Disclosure Package, as amended or supplemented at the Execution Time, and the price to the public, the number of Underwritten Securities and the number of Option Securities to be included on the cover page of the Prospectus, when taken together as a whole, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than the historical and pro forma financial statements and related schedules, including the notes and schedules thereto and the auditor’s report thereon, any other financial or accounting data included in, or excluded from, the Registration Statement or the Prospectus or the Disclosure Package, and representations and warranties and other statements of fact included in the exhibits to the Registration Statement, as to which such counsel need express no opinion);
(iii) the Company has been duly incorporated and is validly existing as a corporation and in good standing under the laws of the State of DelawareDelaware and is duly qualified to transact business and is in good standing in the States of California, with full Florida, Georgia, New Jersey and Utah. Each of the Applicable Subsidiaries is validly existing as a corporation or limited partnership, as applicable, and in good standing under the laws of its jurisdiction of organization and is duly qualified to transact business and is in good standing as listed on Schedule V;
(iv) the Company has the corporate power and corporate authority under the laws of the State of Delaware to own carry on its business and to own, lease and operate its properties and conduct its business as described in the Disclosure Package and Final Prospectus the Prospectus. Each of the Applicable Subsidiaries has the applicable corporate or limited partnership power and authority under the laws of its jurisdiction of organization listed on Schedule V to carry on its business and to own, lease and operate its properties as amended or supplemented, except where such failure would not have a material adverse effect on described in the Company Disclosure Package and its subsidiaries, taken as a wholethe Prospectus;
(Bv) insofar as the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) the Indenture this Agreement has been duly authorized, executed and delivered by the Company;
(vi) the authorized capital stock of the Company consists of 150,000,000 shares of Common Stock and 15,000,000 shares of preferred stock, has par value $0.001 per share (the “Preferred Stock”), and such capital stock (including the shares of Common Stock owned by the Selling Stockholders) conforms as to legal matters to the description thereof contained in the Disclosure Package and the Prospectus under the heading “Description of Capital Stock.” All of the outstanding shares of capital stock of the Company have been duly qualified and validly authorized and issued and are fully paid and nonassessable. Immediately after giving effect to the consummation of the issuance and sale of Securities pursuant to this Agreement occurring as of the Closing Date, (a) such number of shares of Common Stock of the Company stated in such counsel’s opinion will be issued and outstanding and (b) no shares of Preferred Stock will be issued and outstanding. Except as set forth in the Disclosure Package and the Prospectus, to such counsel’s knowledge, (i) no options or warrants issued by the Company, (ii) rights to convert any Company obligations into, or exchange any securities for, Common Stock or (iii) other rights to purchase, or agreements or other obligations to issue, capital stock of the Company, are outstanding;
(vii) all of the issued and outstanding equity interests of each of the Applicable Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable and are owned of record by the Company or by one of the Company’s wholly-owned subsidiaries (except to the extent that such nonassessability may be affected by Section 153.112 of the Texas Business Organizations Code); and, except as set forth in the Disclosure Package and the Prospectus, the Company or such wholly-owned subsidiary owns such equity interests free and clear of all Liens (A) in respect of which a financing statement under the Trust Indenture ActDelaware Uniform Commercial Code or the Texas Uniform Commercial Code, as applicable, naming the owner of the equity interests of such Applicable Subsidiary as debtor is on file as of a recent date in the office of the Secretary of State of the State of Delaware or the Secretary of State of the State of Texas, as applicable, or (B) otherwise known to such counsel without independent investigation;
(viii) the issuance and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies sale of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 by all necessary corporate action of the Indenture Company;
(ix) except as disclosed in the Disclosure Package and the Prospectus, the holders of outstanding shares of capital stock of the Company are not entitled to any preemptive rights under the certificate of incorporation of the Company, the bylaws of the Company, the Delaware General Corporation Law or any Applicable Agreement (as defined in such opinion), to subscribe for the Securities;
(x) except as disclosed in the Registration Statement and the Prospectus, no Person has the right, which has not been waived, under any Applicable Agreement to require the registration under the Act of any sale of securities issued by the Company, by reason of the filing or effectiveness of the Registration Statement;
(xi) when delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, the Securities will be legalvalidly issued, valid fully paid and binding obligations nonassessable. The certificates for the Securities comply as to form with the Delaware General Corporation Law, the certificate of incorporation of the Company enforceable against and the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies bylaws of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(Fxii) no authorizationnone of (i) the execution and delivery by the Company of this Agreement and (ii) the consummation by the Company of the issuance and sale of the Securities pursuant to this Agreement, approval (A) constituted, constitutes or other action bywill constitute a violation of the certificate of incorporation of the Company, and no notice tothe bylaws of the Company or the organizational documents of the subsidiaries, consent of(B) constituted, order constitutes or will constitute a breach or violation of, or filing a default (or an event which, with notice or lapse of time or both, would constitute such a default) under, or conflict with, any U.S. federal Applicable Agreement, (C) resulted, results or California will result in the creation of any security interest in, or Delaware governmental authority Lien upon, any of the property or agency assets of the Company or any Applicable Subsidiary pursuant to any Applicable Agreement, (D) resulted, results or will result in any violation of, or creation of a Lien under, (i) applicable laws of the United States of America, (ii) applicable laws of the State of New York, (iii) applicable laws of the State of Texas or (iv) the General Corporation Law of the State of Delaware, or (E) resulted, results or will result in the contravention of any Applicable Order (as defined in such opinion);
(xiii) no Governmental Approval, which has not been obtained or taken and is not in full force and effect, is required for to authorize, or is required for, the execution, delivery and performance by the Company of this Agreement or the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue issuance and sale of the SecuritiesSecurities pursuant to this Agreement. As used in this paragraph, the consummation of “Governmental Approval” means any other of the transactions herein contemplated consent, approval, license, authorization or the fulfillment of the terms hereof will conflict with, result in a breach validation of, or constitute a default underfiling, recording or registration with, any executive, legislative, judicial, administrative or regulatory body of the charter State of Delaware or by-the United States of America, pursuant to (i) applicable laws of the Company orUnited States of America, to such counsel’s knowledge(ii) applicable laws of the State of New York, (iii) applicable laws of the terms State of any Material Agreements, Texas or any material decree or regulation known to such counsel to be applicable to (iv) the Company General Corporation Law of any U.S. federal or California or Delaware court,the State of Delaware;
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date, to the accuracy in all material respects of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus 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, or any notice that would prevent its use, as amended from time to time, shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate Assistant General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the Company, dated the Closing Date, substantially to the effect that:
(A) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(B) insofar as the statements Indenture and the Securities conform in all material respects to the description thereof contained in the Disclosure Package, the statements contained in Package and the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisionsProspectus;
(C) 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and subject to limitations on rights to indemnification and contribution under applicable law or equitable principles); 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 in accordance with the terms of pursuant to this Agreement, will be constitute legal, valid and binding obligations of the Company enforceable against entitled to the Company in accordance with their terms benefits of the Indenture (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and subject to limitations on rights to indemnification and contribution under applicable law or equitable principles);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, to such counsel’s 's knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to be applicable to the Company of any U.S. federal or California or Delaware court,, governmental authority or agency having jurisdiction over the Company. "Material Agreements" means all agreements filed as exhibits to the Company's most recent Annual Report on Form 10-K pursuant to clause (10) of paragraph (b) of Item 601 of Regulation S-K (but only such agreements that continue to be in effect). Such opinion shall also include a statement that such counsel has participated in conferences with officers and other representatives of the Company, counsel for the Company, the independent accountants of the Company and the Underwriters at which the Registration Statement, the Disclosure Package and the Final Prospectus and related matters were discussed and, although such counsel is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the Registration Statement, the Disclosure Package or the Final Prospectus or the statements contained therein and has made no independent check or verification thereof, on the basis of the foregoing, no facts have come to such counsel's attention that has caused such counsel to believe that (i) the Registration Statement and the Final Prospectus (except the financial statements and the notes thereto and financial statement schedules and other information of an accounting, statistical or financial nature included therein, and the Statement of Eligibility (Form T-1) included as an exhibit to the Registration Statement, as to which such counsel need express no view) were not appropriately responsive in all material respects with requirements of the Act and the rules thereunder, (ii) the Registration Statement at the 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 that the Final Prospectus as of its date and on the Closing Date includes any untrue statement of a material fact or omits 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 (in each case except for the financial statements and the notes thereto and the financial statement schedules and other information of an accounting, statistical or financial nature included therein, and the Statement of Eligibility (Form T-1) included as an exhibit to the Registration Statement, as to which such counsel need express no view) and (iii) that the Base Prospectus, the Preliminary Prospectus and such other documents specified in a schedule to such counsel's opinion (consisting of those included in the Disclosure Package), all considered together, as of the Applicable Time, contained any untrue statement of material fact or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstance under which they were made, not misleading (except the financial statements and the notes thereto and financial statement schedules and other information of an accounting, statistical or financial nature included therein, as to which such counsel need express no view). Any of the statements described above may be omitted from the opinion of such counsel; provided, however, that in such event the Company shall also have furnished to the Representatives the corresponding opinion or statement of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional Corporation, counsel for the Company, described in subsection 5(b)(ii) below.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Bonds shall be subject subject, in the discretion of the Representatives, to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) hereof and as of the Closing Date, to the accuracy in all material respects of the statements of the Company Company’s officers on and as of the Closing Date made in any certificates delivered by the Company given pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in with the manner and Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) hereof; all filings (including, without limitation, the Final Term Sheet) required by Rule 433433 under the Act shall have been made, and no such filings shall have been made without the consent of the Representatives; and no stop order suspending the effectiveness of the Registration Statement, Statement or any notice that would prevent its use, as amended from time to time, part thereof or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or threatenedthreatened by the Commission; no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; and all requests for additional information on the part of the Commission shall have been complied with to the Representatives’ reasonable satisfaction.
(b) The Representatives shall be furnished with opinion letters, dated the Closing Date, of:
(i) The Company, that address substantially the matters set forth in Exhibit A; and
(ii) ▇▇▇▇▇ Day, counsel for the Company, that address substantially the matters set forth in Exhibit B.
(c) The Representatives shall have received from ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions dated the Closing Date with respect to such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives:
(i) the opinion Representatives a certificate of the General Counsel, an Associate General Counsel President or a Deputy General Counsel any Vice President of the Company, or an outside counsel for the Company, dated the Closing Date, substantially as to the matters set forth in paragraphs (a) and (h) of this Section 7 and to the further effect that the signers of such certificate have examined the Registration Statement, the Prospectus and this Agreement and that, to the best of his or her knowledge:
(Ai) 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; and
(ii) there has been duly incorporated no material adverse change in the condition of the Company and is validly existing its subsidiaries taken as a corporation whole, financial or otherwise, whether or not arising in good standing under the laws ordinary course of business, from that set forth or contemplated by the Registration Statement, the most recent Preliminary Prospectus, or the Prospectus.
(e) The Representatives shall have received letters from Deloitte & Touche LLP, independent public accountants for the Company (dated the date of this Agreement and Closing Date, respectively, and in form and substance satisfactory to the Representatives) advising that (i) they are an independent registered public accounting firm with respect to the Company as required by the Act and published rules and regulations of the State of DelawareCommission thereunder, with full corporate power (ii) in their opinion, the consolidated financial statements and authority to own its properties and conduct its business as described supplemental schedules included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus and Final covered by their opinion filed with the Commission under Section 13 of the Exchange Act comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the published rules and regulations of the Commission thereunder, (iii) that they have performed limited procedures, not constituting an audit, including a reading of the latest available interim financial statements of the Company, a reading of the minutes of meetings of the Board of Directors, committees thereof, and of the shareholder of the Company since the date of the most recent audited financial statements included or incorporated by reference in the Pricing Disclosure Package or Prospectus, inquiries of officials of the Company responsible for financial accounting matters and such other inquiries and procedures as may be specified in such letter, and on the basis of such limited review and procedures nothing came to their attention that caused them to believe that: (A) (1) any material modifications should be made to any unaudited consolidated financial statements of the Company included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus for them to be in conformity with generally accepted accounting principles or (2) any unaudited consolidated financial statements of the Company included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus do not comply as amended to form in all material respects with the applicable accounting requirements of the Exchange Act and the rules and regulations of the Commission applicable to Form 10-Q; and (B) with respect to the period subsequent to the date of the most recent financial statements included or supplementedincorporated by reference in the Pricing Disclosure Package or the Prospectus and except as set forth in or contemplated by the Registration Statement, except where the Pricing Disclosure Package or the Prospectus, there were any adverse changes, at a specified date not more than three business days prior to the date of the letter, in the capital stock of the Company, increases in long-term debt of the Company on a consolidated basis as compared to the amounts shown on the most recent consolidated balance sheet included or incorporated by reference in the Pricing Disclosure Package or the Prospectus or, as of a specified date, there were any decreases in stockholder’s equity or net current assets of the Company on a consolidated basis as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated by reference in the Pricing Disclosure Package or the Prospectus, or for the period from the date of the most recent financial statements included or incorporated by reference in the Pricing Disclosure Package or the Prospectus to such failure would not have a material adverse effect on specified date there were any decreases, as compared with the corresponding period in the preceding year, in operating revenues, operating income or net income of the Company and its subsidiaries, taken as a whole;
(B) insofar as the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present except in all material respects instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an accurate summary of such provisions;
(C) the Indenture has been duly authorized, executed and delivered explanation by the Company, has been duly qualified under Company as to the Trust Indenture Act, and constitutes a legal, valid and binding obligation enforceable against significance thereof unless said explanation is not deemed necessary by the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law)Representatives; and the Securities (iv) they 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 in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required carried out specified procedures performed for the consummation purpose of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act comparing certain specified financial information and the Trust Indenture 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 and such other approvals percentages (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or the fulfillment of the terms hereof will conflict with, result in a breach of, or constitute a default under, the charter or by-laws which is limited to financial information derived from general accounting records of the Company or, to the extent not so derived, from schedules prepared by Company officers responsible for such counsel’s knowledgeaccounting records) included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus with indicated amounts in the financial statements or accounting records of the Company and (excluding any questions of legal interpretation) have found such information and percentages to be in agreement with the relevant accounting and financial information of the Company referred to in such letter in the description of the procedures performed by them.
(f) Subsequent to the respective dates as of which information is given in the Registration Statement and the Pricing Disclosure Package, there shall not have been any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 7 which makes it impractical or inadvisable in the judgment of the Representatives to proceed with the public offering or the delivery of the Bonds on the terms and in the manner contemplated by the Pricing Disclosure Package.
(g) Subsequent to the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Bonds or any other debt securities or preferred stock of or guaranteed by the Company by any “nationally recognized statistical rating organization,” as such term is defined by the Commission for purposes of Rule 436(g)(2) under the Act (other than downgrades of debt securities issued by or on behalf of governmental entities for the benefit of the Company solely as a result of downgrades of ratings of any Material Agreementsthird parties insuring such debt securities) and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Bonds or of any other debt securities or preferred stock of or guaranteed by the Company (other than an announcement with positive implications of a possible upgrading and other than with respect to debt securities issued by or on behalf of governmental entities for the benefit of the Company solely as a result of any such announcement with respect to any third parties insuring such debt securities).
(h) Since the most recent dates as of which information is given in the Pricing Disclosure Package and the Prospectus there has been no material adverse change in the condition of the Company and its subsidiaries taken as a whole, financial or otherwise, whether or not arising in the ordinary course of business, otherwise than as set forth or contemplated in the Pricing Disclosure Package and the Prospectus, the effect of which is in the judgment of the Underwriters so material and adverse as to make it impracticable or inadvisable to proceed with the offering, sale or the delivery of the Bonds on the terms and in the manner contemplated by this Agreement and the Prospectus.
(i) No Representative shall have advised the Company that the Registration Statement, Pricing Disclosure Package or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact which in the opinion of counsel for the Underwriters is material decree or omits to state a fact which in the opinion of counsel for the Underwriters is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(j) No action shall have been taken and no statute, rule, regulation known or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Bonds; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Bonds.
(k) All corporate proceedings and other legal matters incident to such the authorization, form and validity of the Indenture and this Agreement and the transactions contemplated hereby shall be reasonably satisfactory to counsel to the Underwriters, and prior to the Closing Date, the Company shall have furnished to the Representatives such other customary information, certificates and documents as they may reasonably request.
(l) The Company and Trustee shall have entered into the supplemental indenture relating to the Bonds, and the Representatives shall have received counterparts, conformed as executed thereof, and the Bonds shall have been duly executed and delivered by the Company and authenticated by the Trustee. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be applicable satisfactory in form and substance to the Representatives and their counsel, 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 of any U.S. federal in writing, or California by telephone, telegraph or Delaware court,facsimile transmission confirmed in writing.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Execution Timethough made on, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date hereof and (including the filing of any document incorporated by reference thereinii) on, and as of though made on, the Closing Date, to the accuracy in all material respects of the statements of the Company Republic made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Final ProspectusPrior to the Closing Date, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus 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, or any notice that would prevent its use, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) of this Agreement; and any final term sheet contemplated by Section 4(a) hereof, and any other material required to be filed by the Republic 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.
(b) The Company Head or Acting Head of the Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyRepresentatives such counsel’s written opinion, dated the Closing Date, substantially to the effect that:
(i) The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Republic and the Agreements constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(iv) The Securities have been duly authorized, executed, issued and delivered by the Republic in accordance with the Indenture, and, assuming due authentication and delivery by the Trustee, the Securities constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms entitled to the benefits provided by the Indenture;
(v) The obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Securities) of the Republic that will rank without any preference among themselves and equal in right of payment with all other present and future unsecured and unsubordinated External Indebtedness of the Republic;
(vi) There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of any of the Agreements, the issue of the Securities as contemplated herein and in the Prospectus, or the performance or observance by the Republic of any of the terms of the Agreements or the Securities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the due execution, delivery and performance by the Republic of any of the Agreements or the Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for, (I) the relevant portions of Law 80 of October 28, 1993, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999 (III) Law 533 of November 11, 1999, (IV) Law 781 of December 20, 2002, (V) Law 1366 of December 21, 2009, (VI) Law 1624 of April 29, 2013, (VII) Law 1771 of December 30, 2015, (VIII) Law 2073 of December 31, 2020, (IX) Decree No. 1068 of May 26, 2015, (X) CONPES Document No. 4108 Departamento Nacional de Planeación, Ministerio de Hacienda y Crédito Público, dated November 22, 2022; (XI) evidence of publication of this Agreement in the Sistema Electrónico de Contratación Pública SECOP of the Republic, (XII) Authorization by Act of the Comisión Interparlamentaria de Crédito Público adopted in its meeting held on June 14, 2023, and (XIII) Resolution No. 758 dated April 3, 2024 of the Ministerio de Hacienda y Crédito Público (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not necessary that any Agreement or the Securities be registered, recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General or Acting Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of Resolution No. 758 dated April 3, 2024 issued by Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic, (B) filing of information before the Colombian Central Bank (Banco de la República) of public external indebtedness report on the relevant “International Indebtedness Granted to Residents Form” (Informe de Crédito Externo Otorgado a Residentes - Extracto de Crédito Externo), resulting from the issuance of the Securities under the Indenture and (C) the publication of this Agreement in the Sistema Electrónico de Contratación Pública-SECOP of the Republic, to satisfy the requirement for such publications, each of which shall be effected on or prior to the Closing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that the Securities are held by a non-resident and non-domiciliary of the Republic;
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process, subject to the terms, conditions, limitations or exceptions under (i) Articles 192, 195, 298 and 299 of Law 1437 of 2011 (Código de Procedimiento Administrativo y de lo Contencioso Administrativo) as amended by Articles 80, 81 and 87 of Law 2080 of 2021; and (ii) Articles 593, 594 and 595 et al of Law 1564 of 2012 (Código General del Proceso); and Article 19 of Decree 111 of January 15, 1996, pursuant to which the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Indenture and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Indenture and the Securities as provided in Section 15 hereof, Section 9.7(a) of the Indenture and Section 16(a) of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur,” subject to the provisions of (i) Article 605 (et al) of Law 1564 of 2012 (Código General del Proceso), which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic; and (ii) subject to compliance with the provisions of Articles 606 and 607 of Law 1564 of 2012 (Código General del Proceso). The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic other than those governing judicial procedures, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly legalized copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus, as amended or supplemented, and their filing with the Commission have been duly authorized by and on behalf of the Republic, and the Registration Statement, as amended, has been duly executed by and on behalf of the Republic, and the information in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, stated on the authority of public officials of the Republic has been stated in their official capacities thereunto duly authorized;
(xvii) The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Indenture, insofar as matters of Colombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Company has been duly incorporated and is validly existing as a corporation in good standing under Registration Statement, at the laws respective times each part became effective, contained an untrue statement of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on fact or omitted to state a material fact required to be stated therein or necessary to make the Company and its subsidiaries, taken as a wholestatements therein not misleading;
(B) insofar No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof 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 to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(C) No information has come to such counsel’s attention that causes such counsel to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in 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 the circumstances under which they were made, not misleading. Such counsel may state that he or she is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Disclosure PackageProspectus (except to the extent expressly set forth in (xvii) above) and that such counsel makes no representation that such counsel has independently verified the accuracy, the statements contained in the Final Prospectus under the caption “Description completeness and fairness of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Actexcept as aforesaid), and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known opinions referred to such counsel to be applicable to the Company of any U.S. federal or California or Delaware court,in this subsectio
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the several Underwriters to purchase the Securities under this Agreement shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained and the Selling Shareholders herein as of the Execution Time, set forth as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) hereof and as of the each Closing Date, to the accuracy in all material respects of the statements of the Company Company’s officers, the Selling Shareholders and the Attorneys-in-Fact on behalf of the Selling Shareholders made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company and the Selling Shareholders of its their respective obligations hereunder hereunder, and to the following additional conditions, unless waived in writing by the Representative:
(a) The Final ProspectusAll filings required by Rules 424(b), or any supplement thereto, 430A and 430C under the Act shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required by Rule 433timely made; and no stop order suspending the effectiveness of the Registration Statement shall have been issued by the Commission or any state securities commission nor, to the knowledge of the Company or the Selling Shareholders, shall any proceedings for that purpose have been initiated or threatened; and any request of the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or any notice that would prevent its use, as amended from time to timeotherwise, shall have been issued and no proceedings for that purpose shall have been instituted or threatenedcomplied with to the satisfaction of the Representative.
(b) Since the Applicable Time:
(i) there shall not have occurred any change or development involving, or which would reasonably be expected to involve, a Material Adverse Effect on the Company, whether or not arising from transactions in the ordinary course of business; and
(ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree, the effect of which on the Company, in any such case described in clause (i) or (ii) above, is in the opinion of the Representative so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus, the Preliminary Prospectus and the Registration Statement. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated April 6, 2006
(c) The Representative shall not have advised the Company that the Prospectus, the Preliminary Prospectus or the Registration Statement contains an untrue statement of fact that, in the opinion of the Representative or counsel for the Underwriters, is material, or omits to state a fact that, in the opinion of the Representative or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(d) The Representative shall have received an opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, counsel to the Company, addressed to the Representative, as the representative of the Underwriters, and dated the First Closing Date or the Second Closing Date, as the case may be, in form and substance satisfactory to the Representative, in its reasonable discretion. In rendering such opinion, counsel for the Company may rely, to the extent such counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and of governmental officials. Copies of all such certificates and opinions shall be furnished to the Representative and counsel for the Underwriters on or before each Closing Date.
(e) The Representative shall have received an opinion of (i) ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Selling Shareholders (other than ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Oakley, as trustee) and (ii) ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Oakley, as trustee, in each case addressed to the Representative, as the representative of the Underwriters, and dated the First Closing Date or the Second Closing Date, as the case may be, in form and substance satisfactory to the Representative, in its reasonable discretion. In rendering such opinion, counsel for the Selling Shareholders may rely, to the extent such counsel deems such reliance proper, as to matters of fact upon certificates of the Selling Shareholders, and copies of all such certificates shall be furnished to the Representative and counsel for the Underwriters on or before each Closing Date.
(f) The Representative shall have received an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the Prospectus, the Preliminary Prospectus and the Registration Statement and other related matters as the Representative may require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as they request for the Representatives:purpose of enabling them to pass upon such matters.
(ig) the opinion The Representative shall have received on each Closing Date, a certificate of the General Counsel▇▇▇▇ ▇. ▇▇▇▇▇▇▇, an Associate General Counsel or a Deputy General Counsel Chairman and Chief Executive Officer, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇, Executive Vice President and Chief Financial Officer, of the Company, or an outside counsel for the Company, dated the Closing Date, substantially to the effect that:
(Ai) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has been duly incorporated complied with all the agreements and is validly existing as a corporation in good standing under satisfied all the laws conditions to be performed or satisfied by it at or prior to the date of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken as a wholecertificate;
(Bii) insofar as The Commission has not issued an order preventing or suspending the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description use of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description or any portion of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements amendment or supplement thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use Statement has been issued by the Commission; and to the knowledge of the respective signatories, no proceedings for that purpose have been instituted initiated or are pending or contemplated by the Commission under the Act;; ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated April 6, 2006
(Eiii) this Agreement Each of the respective signatories has been duly authorizedcarefully examined the Prospectus, executed the Preliminary Prospectus and delivered by the Company;
(F) no authorization, approval or other action byRegistration Statement, and no notice toany amendment or supplement thereto, consent of, order of, or filing with, including any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained documents filed under the Act, the Exchange Act and deemed to be incorporated by reference in the Trust Indenture Act Registration Statement, and such as may documents contain all statements required to be stated therein, and do not include any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set forth, and there has been no document required to be filed under the blue sky laws of any jurisdiction Exchange Act that upon such filing would be deemed to be incorporated by reference in connection with the purchase and distribution of the Securities and such other approvals (specified in such opinion) as have Registration Statement that has not been obtainedso filed; and
(Giv) none Since the Applicable Time, there has not occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, except as disclosed in the Prospectus, the Preliminary Prospectus and the Registration Statement, as heretofore amended or (but only if the Representative expressly consent thereto in writing) as disclosed in an amendment or supplement thereto filed with the Commission and delivered to the Representative after the execution of this Agreement; since such date and except as so disclosed or in the ordinary course of business, the Company has not incurred any liability or obligation, direct or indirect, or entered into any transaction which is material to the Company; since such date and except as so disclosed, there has not been any change in the outstanding capital stock of the issue and sale Company, or any change that is material to the Company in the short-term debt or long-term debt of the SecuritiesCompany; since such date and except as so disclosed, the consummation of Company has not acquired any other of the transactions herein contemplated Common Stock or the fulfillment of the terms hereof will conflict with, result in a breach of, or constitute a default under, the charter or by-laws other capital stock of the Company ornor has the Company declared or paid any dividend, or made any other distribution, upon its outstanding Common Stock payable to shareholders of record on a date prior to such Closing Date; since such date and except as so disclosed, the Company has not incurred any material contingent obligations, and no material litigation is pending or threatened against the Company; and, since such date and except as so disclosed, the Company has not sustained any material loss or interference from any strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree. The delivery of the certificate provided for in this subsection (g) shall be and constitute a representation and warranty of the Company as to the facts required in the immediately foregoing clauses (i), (ii), (iii) and (iv) to be set forth in said certificate.
(h) The Representative shall have received a certificate from each Selling Shareholder (which may be signed by such Selling Shareholder’s Attorneys-in-Fact, or either of them), dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that the representations and warranties of such counsel’s knowledgeSelling Shareholder in Section 3 of this Agreement are true and correct as of the date of this Agreement and as of the date of such ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated April 6, 2006 certificate, as if again made on and as of such Closing Date, and such Selling Shareholder has complied with all of the agreements and satisfied all of the conditions to be performed or satisfied by such Selling Shareholder at or prior to such Closing Date.
(i) At the time this Agreement is executed and also on each Closing Date, there shall be delivered to the Representative a letter addressed to the Representative, as the representative of the Underwriters, from KPMG LLP, the terms of any Material AgreementsCompany’s independent registered public accountants, or any material decree or regulation known to such counsel the first letter to be applicable dated the date of this Agreement, the second letter to be dated the First Closing Date and the third letter (if applicable) to be dated the Second Closing Date, which shall be in form and substance satisfactory to the Representative and shall contain statements and information of the type ordinarily included in accountant’s “comfort letters” to underwriters with respect to financial statements and certain financial information contained or incorporated by reference in the Prospectus, the Preliminary Prospectus and the Registration Statement. There shall not have been any change or decrease set forth in any of the letters referred to in this subsection (i) which makes it impracticable or inadvisable in the judgment of the Representative to proceed with the public offering or purchase of the Shares as contemplated hereby.
(j) The shares shall have been approved for listing upon notice of issuance on Nasdaq.
(k) The Lock-Up Agreements between you, on the one hand, and each of the parties listed on Schedule III hereto on the other hand, 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 date the shares are purchased.
(l) The representative shall have received such further certificates and documents as the Representative may reasonably request (including certificates of officers of the Company). All such opinions, certificates, letters and documents shall be in compliance with the provisions hereof only if they are satisfactory to the Representative and to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, in their reasonable discretion. The Company shall furnish the Representative with such manually signed or conformed copies of such opinions, certificates, letters and documents as the Representative may reasonably request. If any condition to the Underwriters’ obligations hereunder to be satisfied prior to or at either Closing Date (other than Section 9(f), provided the Company has fully complied therewith) is not so satisfied, this Agreement at the election of the Representative will terminate upon notification to the Company without liability on the part of any U.S. federal Underwriter, including the Representative, or California or Delaware court,the Company except for the provisions of Section 6(l) hereof, the expenses to be paid by the Company pursuant to Section 8 hereof and except to the extent provided in Section 13 hereof.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Execution Timethough made on, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date hereof and (including the filing of any document incorporated by reference thereinii) on, and as of though made on, the Closing Date, to the accuracy in all material respects of the statements of the Company Republic made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Final ProspectusPrior to the Closing Date, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus 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, or any notice that would prevent its use, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) of this Agreement; and any final term sheet contemplated by Section 4(a) hereof, and any other material required to be filed by the Republic 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.
(b) The Company Head or Acting Head of the Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyRepresentatives such counsel’s written opinion, dated the Closing Date, substantially to the effect that:
(i) The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Republic and the Agreements constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(iv) The Securities have been duly authorized, executed, issued and delivered by the Republic in accordance with the Fiscal Agency Agreement, and, assuming due authentication and delivery by the Fiscal Agent, the Securities constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(v) The obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Securities) of the Republic that will rank equal in right of payment with all other present and future unsecured and unsubordinated External Indebtedness of the Republic;
(vi) There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of any of the Agreements, the issue of the Securities as contemplated herein and in the Prospectus, or the performance or observance by the Republic of any of the terms of the Agreements or the Securities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the due execution, delivery and performance by the Republic of any of the Agreements or the Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for (I) Law 533 of November 11, 1999, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999, (III) the relevant portions of Law 80 of October 28, 1993, (IV) Law 781 of December 20, 2002, (V) Law 1366 of December 21, 2009, (VI) Decree No. 2681 of December 29, 1993, (VII) Resolution No. 1923 dated July 9, 2010 of the Ministerio de Hacienda y Crédito Público, (VIII) CONPES Document No. 3662 DNP:SC-DEE MINHACIENDA, dated May 10, 2010, (IX) Authorization by Act of the Comisión Interparlamentaria de Crédito Público adopted in its meeting held on May 19, 2010 and (X) External Resolution No. 3 dated April 8, 2009 of the Board of Governors of the Central Bank of Colombia (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not necessary that any Agreement or the Securities be registered, recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 1923 dated July 9, 2010 issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) a summary of the Agreements in the Diario Único de Contratación Pública of the Republic, to satisfy the requirement for such publications, (B) notice to the Banco de la República concerning the external indebtedness represented by the Securities and (C) in accordance with External Resolution No. 3 of April 8, 2009, issued by the Junta Directiva del Banco de la República, the delivery of written information from the Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público to the Junta Directiva del Banco de la República regarding the proposed issuance of the Securities, each of which shall be effected on or prior to the Closing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that the Securities are held by a non-resident and non-domiciliary of the Republic;
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process; provided, that, except as provided under Article 177 of the Código Contencioso Administrativo of the Republic, which does not override Articles 684 or 513 of the Código de Procedimiento Civil and Article 19 of Decree 111 of January 15, 1996 of the Republic, the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Fiscal Agency Agreement and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Fiscal Agency Agreement and the Securities as provided in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 16 of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur”, subject to the provisions of Article 693 of the Código de Procedimiento Civil which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic and subject to compliance with the provisions of Article 694 of the Código de Procedimiento Civil. The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus, as amended or supplemented, and their filing with the Commission have been duly authorized by and on behalf of the Republic, and the Registration Statement, as amended, has been duly executed by and on behalf of the Republic, and the information in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, stated on the authority of public officials of the Republic has been stated in their official capacities thereunto duly authorized;
(xvii) The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Fiscal Agency Agreement, insofar as matters of Colombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Company has been duly incorporated and is validly existing as a corporation in good standing under Registration Statement, at the laws respective times each part became effective, contained an untrue statement of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on fact or omitted to state a material fact required to be stated therein or necessary to make the Company and its subsidiaries, taken as a wholestatements therein not misleading;
(B) insofar No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof 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 to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(C) No information has come to such counsel’s attention that causes such counsel to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in 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 the circumstances under which they were made, not misleading. Such counsel may state that he or she is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Disclosure PackageProspectus (except to the extent expressly set forth in (xvii) above) and that such counsel makes no representation that such counsel has independently verified the accuracy, the statements contained in the Final Prospectus under the caption “Description completeness and fairness of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Actexcept as aforesaid), and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, to such counsel’s knowledgeopinions referred to in this subsection (b) are limited to matters of Colombian law and, insofar as the terms opinion required by this subsection (b) is affected by matters of any Material AgreementsUnited States or New York law, or any material decree or regulation known to such counsel to it may be applicable given in reliance upon the opinion required by subsection (c) of this Section 7 and that, insofar as the foregoing opinions relate to the Company of any U.S. federal or California or Delaware court,legal
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The ------------------------------------------------- obligations of the several Underwriters to purchase the Securities under this Agreement shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time, set forth as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) hereof and as of the each Closing Date, to the accuracy in all material respects of the statements of the Company Company's officers made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder hereunder, and to the following additional conditions, unless waived in writing by the Representative:
(a) The Final Prospectus, or any supplement thereto, Registration Statement shall have been filed in declared effective by the manner Commission; all filings required by Rules 424(b) and within 430A under the time period required under Rule 424(b), and any Issuer Free Writing Prospectus Act shall have been filed in the manner and within the time period required by Rule 433timely made; and no stop order suspending the effectiveness of the Registration Statement shall have been issued by the Commission or any state securities commission nor, to the knowledge of the Company, shall any proceedings for that purpose have been initiated or threatened; and any request of the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or any notice that would prevent its use, as amended from time to timeotherwise, shall have been issued and no proceedings for that purpose shall have been instituted or threatenedcomplied with to the reasonable satisfaction of the Representative.
(b) The Since the dates as of which information is given in the Registration Statement: (i) there shall not have occurred any change or development involving, or which would be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business; and (ii) the Company shall not have furnished sustained any material loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree, the effect of which on the Company, in any such case described in clause (i) or (ii) above, is, in the sole discretion of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(c) The Representative shall not have been advised that the Registration Statement or the Prospectus contains an untrue statement of fact that, in the opinion of the Representative or counsel to the RepresentativesUnderwriters, is material, or omits to state a fact that, in the opinion of the Representative or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(d) The Representative shall have received an opinion of Bartlit ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company, addressed to the Representative, in its capacity as the Representative of the Underwriters, and dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that, subject to customary qualifications and assumptions:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the Company, dated the Closing Date, substantially to the effect that:
(A) the Company has been duly incorporated and is validly existing as a corporation and in good standing under the laws of its jurisdiction of incorporation, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement;
(ii) the authorized capital stock of the Company consists of 150,000,000 shares of Class A Common Stock, par value $0.0001 per share, 50,000,000 shares of Class B Common Stock, par value $0.0001 per share and 50,000,000 shares of preferred stock, par value $0.0001 per share, and all such stock conforms in all material respects to the descriptions thereof in the Prospectus and the Registration Statement;
(iii) the issued and outstanding shares of capital stock of the Company immediately prior to the issuance and sale of the Shares to be sold by the Company hereunder have been duly authorized and validly issued, are fully paid and nonassessable, and there are no statutory preemptive rights to subscribe for or purchase any shares of capital stock of the Company, and no shares of capital stock of the Company have been issued in violation of such rights;
(iv) to such counsel's knowledge, except for the Subsidiaries, the Company has no "significant subsidiaries" (as defined in Rule 1- 02(w) of Regulation S-X under the Act), and the Company does not own any equity interest in or control, directly or indirectly, any other corporation, limited liability company, partnership, joint venture, association, trust or other business organization except as described in the Prospectus and the Registration Statement and except as set forth in Schedule III to this Agreement; each Subsidiary (excluding EcoSport, Inc., Gaiam International, Inc. and Real Goods Trading Corporation, as to which such counsel need not express any opinion) is validly existing, in good standing under the laws of the State of DelawareColorado, with full corporate power and authority to own own, lease and operate its properties and to conduct its business as presently conducted and as described in the Disclosure Package Prospectus and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company Registration Statement; the issued and its subsidiaries, taken as a whole;
(B) insofar as the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description outstanding shares of the Global Notes” capital stock of each of Business Express, Inc., Gaiam Catalog, Inc., Gaiam Holdings, Inc., Gaiam Travel, Inc. and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law); and the Securities Real Good Trading Corporation have been duly authorized and validly issued, are fully paid and nonassessable and there are no preemptive rights to subscribe for or purchase any shares of capital stock of or other equity interest in any Subsidiary under the articles of incorporation or bylaws of such Subsidiary, Colorado law or the agreements listed as exhibits to the Registration Statement, and no shares of capital stock or other equity interest of any Subsidiary have been issued in violation of such rights; except as otherwise described in the Registration Statement the outstanding capital stock of each subsidiary owned by the Company is owned directly or indirectly, free and clear of any and all liens, claims, encumbrances and security interests;
(v) the issuance and sale of the Shares has been duly authorized by the Company and, when executed and authenticated delivered to the Representative or upon the order of the Representative against payment of the agreed consideration therefor in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, the Shares to be sold by the Company to the Underwriters hereunder will be legalduly and validly issued, valid fully paid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effectnonassessable, and subject free of any preemptive rights to general principles of equity, regardless of whether subscribe for or purchase such enforceability is considered in a proceeding in equity or at law)Shares;
(Dvi) the Registration Statement and any amendments thereto have has become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectusand, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use Statement has been issued and no proceedings for that purpose have been instituted initiated or are pending threatened under the Act or contemplated any Blue Sky Laws; the Registration Statement, as of its date, and the Prospectus, as of its date, and any amendment or supplement thereto (except for the financial statements and other statistical or financial data included therein, as to which such counsel need express no opinion), comply as to form in all material respects with the requirements of the Act, including Form S-1 promulgated under the Act;
(Evii) the Company has the corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action, and this Agreement has been duly authorized, executed and delivered by and on behalf of the Company;
(F) , and is a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms; no authorizationconsent, approval approval, authorization or other action byorder or decree of any court, and no notice toregulatory or governmental body, consent ofarbitrator, order of, administrative agency or filing with, any U.S. federal other instrumentality of the United States or California or Delaware governmental authority or agency of the State of Colorado is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated herein, by this Agreement (except such as have been obtained under for compliance with the Act, the Exchange Act Act, applicable Blue Sky Laws and the Trust Indenture Act clearance of the underwriting arrangements by the NASD);
(viii) the execution, delivery and such as may be required under performance of this Agreement by the blue sky Company will not: (A) violate any provisions of the articles of incorporation or by-laws of the Company or any jurisdiction in connection with the purchase and distribution of the Securities and such other approvals Subsidiary; (specified in such opinionB) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or the fulfillment of the terms hereof will conflict with, result in a breach the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the charter Company or any Subsidiary is a party or by which the Company or such Subsidiary, or any of their respective owned or leased property is bound, and which is filed as an exhibit to the Registration Statement (except that such counsel need not express any opinion with respect to financial ratios or any aspect of the financial condition or results of operations of the Company to the extent the determination of such breach, modification, termination or default requires quantitative determination); or (C) violate any statute, ordinance, rule, or regulation of any regulatory or governmental body, or to such counsel's knowledge, any order or decree of any court, arbitrator, administrative agency or other instrumentality of the United States or of the State of Colorado (assuming compliance with all applicable federal and state securities laws);
(ix) to such counsel's knowledge, except as described in the Prospectus, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities;
(x) neither the Company nor any Subsidiary is, nor with the giving of notice or passage of time or both would be, (A) in violation of its respective articles of incorporation or by-laws laws, except for such violations that would not reasonably be expected to have a material adverse effect on the Company and its subsidiaries taken as a whole or (B) to such counsel's knowledge, in default in any material respect in the performance of any agreement, lease, franchise, license, permit, mortgage, deed of trust, evidence of indebtedness or other instrument, or any other document, in each case that is filed as an exhibit to or incorporated by reference in the Registration Statement, to which the Company or any Subsidiary is subject or bound;
(xi) neither the Company nor any Subsidiary is an "investment company," or an "affiliated person" of, or "promoter" or "principal underwriter" for, an "investment company," as such terms are defined in the Investment Company Act of 1940, as amended (without regard to the second sentence of Section 3(c)(1) of such Act insofar as such sentence applies to the status of investment vehicles of ▇▇▇▇▇ ▇▇▇▇▇▇ as "affiliated persons" with respect to the Company), and, upon its receipt of any proceeds from the sale of the Shares, the Company will not become or be deemed to be an "investment company" thereunder;
(xii) the description in the Registration Statement and the Prospectus of legal matters, statutes, documents, regulations, legal and governmental proceedings, and contracts and other legal documents described therein fairly and correctly present, in all material respects, the information required to be included therein by the Act and fairly summarize the matters referred to therein; and
(xiii) nothing has come to such counsel's attention to lead them to believe that all sales by the Company of its capital stock before the date of the initial filing of the Registration Statement were not at all relevant times duly registered under or were exempt from the registration requirements of the Act. Such opinion may incorporate exclusions and such qualifications reasonably acceptable to the Representative and may, with respect to paragraphs (iii), (iv), (ix), (x), (xi) and (xiii), be based on written representations and certifications of the Company orand respective offerees and purchasers of Shares. Any written representations and certifications on which such opinion may rely shall be provided to the Representative and shall be reasonably acceptable to the Representative.
(e) The Representative shall also have received a letter from Bartlit ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, special counsel for the Company, addressed to the Representative, in its capacity as the Representative of the Underwriters, and dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that (i) no facts have come to the attention of such counsel’s knowledgecounsel which lead it to believe that either the Registration Statement, at the time it became effective, or the Prospectus or any amendment or supplement thereto, as of its date and as of the First Closing Date or Second Closing Date, as the case may be, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of the First Closing Date or the Second Closing Date, as the case may be, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they were made (except for the financial statements and other financial data included therein, as to which such counsel need express no opinion), and (ii) without limiting the generality of the foregoing, no facts have come to the attention of counsel which lead it to believe that there are legal or governmental proceedings pending or threatened against the Company, including, without limitation, any such proceedings that are related to environmental, employee benefit or employment discrimination matters, required to be described in the Registration Statement or the Prospectus which are not so described or which question the validity of this Agreement or any action taken or to be taken pursuant to this Agreement, nor is there any transaction, relationship, agreement, 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 to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference as required. Such letter may incorporate exclusions and such qualifications reasonably acceptable to the Representatives.
(f) The Representative shall have received an opinion of ▇▇▇▇▇▇▇, Phleger & ▇▇▇▇▇▇▇▇ LLP, counsel to the Underwriters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the issuance and sale of the Shares by the Company, the terms of any Material AgreementsRegistration Statement and other related matters as the Representative may require, or any material decree or regulation known and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as they request for the purpose of enabling them to pass upon such matters.
(g) The Representative shall have received on each Closing Date, a certificate of ▇▇▇▇▇ ▇▇▇▇▇▇, Chief Executive Officer, and ▇▇▇▇ ▇▇▇▇▇▇, President of the Company, to the effect that:
(i) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be applicable performed or satisfied in all material respects by it at or prior to the Company date of such certificate;
(ii) To the best knowledge of the respective signatories, after due inquiry, the Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending or contemplated under the Act or under the Blue Sky Laws of any U.S. federal jurisdiction;
(iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or California or Delaware court,supplement thereto, and such documents contain all statements requ
Appears in 1 contract
Sources: Underwriting Agreement (Gaiam Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Execution Timethough made on, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date hereof and (including the filing of any document incorporated by reference thereinii) on, and as of though made on, the Closing Date, to the accuracy in all material respects of the statements of the Company Republic made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Final ProspectusPrior to the Closing Date, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus 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, or any notice that would prevent its use, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) of this Agreement; and any final term sheet contemplated by Section 4(a) hereof, and any other material required to be filed by the Republic 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.
(b) The Company Head or Acting Head of the Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyRepresentatives such counsel’s written opinion, dated the Closing Date, substantially to the effect that:
(i) The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Republic and the Agreements constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(iv) The Securities have been duly authorized, executed, issued and delivered by the Republic in accordance with the Fiscal Agency Agreement, and, assuming due authentication and delivery by the Fiscal Agent, the Securities constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(v) The obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Securities) of the Republic that will rank equal in right of payment with all other present and future unsecured and unsubordinated External Indebtedness of the Republic;
(vi) There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of any of the Agreements, the issue of the Securities as contemplated herein and in the Prospectus, or the performance or observance by the Republic of any of the terms of the Agreements or the Securities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the due execution, delivery and performance by the Republic of any of the Agreements or the Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for (I) Law 533 of November 11, 1999, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999, (III) the relevant portions of Law 80 of October 28, 1993, (IV) Law 781 of December 20, 2002, (V) Law 1366 of December 21, 2009, (VI) Decree No. 2681 of December 29, 1993, (VII) Resolution No. 131 dated January 21, 2013 of the Ministerio de Hacienda y Crédito Público, (VIII) CONPES Document No. 3734 DNP:SC-DEE MINHACIENDA, dated November 23, 2012, (IX) Authorization by Act of the Comisión Interparlamentaria de Crédito Público adopted in its meeting held on January 17, 2013 and (X) External Resolution No. 13 dated November 23, 2012 of the Board of Governors of the Central Bank of Colombia (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not necessary that any Agreement or the Securities be registered, recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 131 dated January 21, 2013 issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) the publication of the Agreements in the Sistema Electrónico de Contratación Pública-SECOP of the Republic, to satisfy the requirement for such publications, (B) notice to the Banco de la República concerning the external indebtedness represented by the Securities and (C) in accordance with External Resolution No. 13 of November 23, 2012, issued by the Board of Governors of the Central Bank of Colombia, the delivery of written information from the Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público to the Board of Governors of the Central Bank of Colombia regarding the proposed issuance of the Securities, each of which shall be effected on or prior to the Closing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that the Securities are held by a non-resident and non-domiciliary of the Republic;
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process, subject to the terms, conditions, limitations or exceptions under (i) Article 177 of the Colombian Administrative Code (Código Contencioso Administrativo) applicable to administrative or judicial proceedings initiated before July 2, 2012; (ii) Articles 192, 195, 298 and 299 of Law 1437 of 2011 (Código de Procedimiento Administrativo y de lo Contencioso Administrativo) applicable to administrative or judicial proceedings initiated on or after July 2, 2012; and (iii) Articles 684 and 513 of the Colombian Civil Procedure Code (Código de Procedimiento Civil), (which will be abrogated by Articles 593, 594 and 595 et al of Law 1564 of 2012 (Código General del Proceso) effective as of January 1, 2014) and Article 19 of Decree 111 of January 15, 1996, pursuant to which the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Fiscal Agency Agreement and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Fiscal Agency Agreement and the Securities as provided in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 16 of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur”, subject to the provisions of (i) Article 693 of the Colombian Civil Procedure Code (Código de Procedimiento Civil), which will be abrogated by article 605 of Law 1564 of 2012 (Código General del Proceso) effective as of January 1, 2014), which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic; and (ii) subject to compliance with the provisions of Article 694 and 695 of the Colombian Civil Procedure Code (Código de Procedimiento Civil), (which will be abrogated by articles 606 and 607, respectively, of Law 1564 of 2012 (Código General del Proceso) effective as of January 1, 2014). The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus, as amended or supplemented, and their filing with the Commission have been duly authorized by and on behalf of the Republic, and the Registration Statement, as amended, has been duly executed by and on behalf of the Republic, and the information in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, stated on the authority of public officials of the Republic has been stated in their official capacities thereunto duly authorized;
(xvii) The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Fiscal Agency Agreement, insofar as matters of Colombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Company has been duly incorporated and is validly existing as a corporation in good standing under Registration Statement, at the laws respective times each part became effective, contained an untrue statement of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on fact or omitted to state a material fact required to be stated therein or necessary to make the Company and its subsidiaries, taken as a wholestatements therein not misleading;
(B) insofar No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof 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 to make the statements contained therein, in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description light of the Global Notes” and the statements contained in the Base Prospectus circumstances under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenturewhich they were made, such statements present in all material respects an accurate summary of such provisions;not misleading; and
(C) the Indenture No information 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, come to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to attention that causes such counsel to be applicable believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in the Company Pricing Disclosure Package, as of the Applicable Time, contained any U.S. federal untrue statement of a material fact or California or Delaware court,omitted to state any material
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Execution Timethough made on, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date hereof and (including the filing of any document incorporated by reference thereinii) on, and as of though made on, the Closing Date, to the accuracy in all material respects of the statements of the Company Republic made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Final ProspectusPrior to the Closing Date, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus 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, or any notice that would prevent its use, as amended from time to time, or any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; and the Prospectus shall have been filed pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) of this Agreement.
(b) The Company Head or Acting Head of the Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyRepresentatives such counsel’s written opinion, dated the Closing Date, substantially to the effect that:
(i) The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Republic and the Agreements constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(iv) The Securities have been duly authorized, executed, issued and delivered by the Republic in accordance with the Fiscal Agency Agreement, and, assuming due authentication and delivery by the Fiscal Agent, the Securities constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(v) The obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Securities) of the Republic that will rank equal in right of payment with all other present and future unsecured and unsubordinated External Indebtedness of the Republic;
(vi) There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of any of the Agreements, the issue of the Securities as contemplated herein and in the Prospectus, or the performance or observance by the Republic of any of the terms of the Agreements or the Securities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the due execution, delivery and performance by the Republic of any of the Agreements or the Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for (I) Law 533 of November 11, 1999, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999, (III) the relevant portions of Law 80 of October 28, 1993, (IV) Law 781 of December 20, 2002, (V) Decree No. 2681 of December 29, 1993, (VI) Article 100 of Decree 111 of January 15, 1996 and (VII) Resolution No. 2254 dated September 14, 2005 of the Ministerio de Hacienda y Crédito Público;
(viii) To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not necessary that any Agreement or the Securities be registered, recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General of Public Credit of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 2254 dated September 14, 2005, issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) a summary of the Agreements in the Diario Unico de Contratación Pública of the Republic, to satisfy the requirement for such publications, (B) notice to the Banco de la República concerning the liability management transaction and (C) in accordance with External Resolution No. 8 of November 19, 2004, issued by the Junta Directiva del Banco de la República, the delivery of written information from the Director General of Public Credit of the Ministerio de Hacienda y Crédito Público to the Junta Directiva del Banco de la República regarding the proposed liability management transaction, each of which shall be effected on or prior to the Closing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that, the Securities are held by a non-resident and non-domiciliary of the Republic.
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process; provided, that, except as provided under Article 177 of the Código Contencioso Administrativo of the Republic, which does not override Articles 684 or 513 of the Código de Procedimiento Civil and Article 19 of Decree 111 of January 15, 1996 of the Republic, the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 15 hereof and in the Fiscal Agency Agreement and the Securities and the appointment of the Authorized Agent in Section 15 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 15 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Fiscal Agency Agreement and the Securities as provided in Section 14 hereof, Section 18 of the Fiscal Agency Agreement and Section 16 of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 15 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur”, subject to the provisions of Article 693 of the Código de Procedimiento Civil which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic and subject to compliance with the provisions of Article 694 of the Código de Procedimiento Civil. The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus, as amended or supplemented, and their filing with the Commission have been duly authorized by and on behalf of the Republic, and the Registration Statement, as amended, has been duly executed by and on behalf of the Republic, and the information in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, stated on the authority of public officials of the Republic has been stated in their official capacities thereunto duly authorized;
(xvii) The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Fiscal Agency Agreement, insofar as matters of Colombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Company has been duly incorporated and is validly existing as a corporation in good standing under Registration Statement, at the laws respective times each part became effective, contained an untrue statement of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on fact or omitted to state a material fact required to be stated therein or necessary to make the Company and its subsidiaries, taken as a whole;statements therein not misleading; and
(B) insofar No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof 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 to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel may state that he or she is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Disclosure PackageProspectus (except to the extent expressly set forth in (xvii) above) and that such counsel makes no representation that such counsel has independently verified the accuracy, completeness and fairness of such statements (except as aforesaid), and that such counsel’s opinions referred to in this subsection (b) are limited to matters of Colombian law and, insofar as the statements contained opinion required by this subsection (b) is affected by matters of United States or New York law, it may be given in reliance upon the Final Prospectus under opinion required by subsection (c) of this Section 6 and that, insofar as the caption “Description foregoing opinions relate to the legality, validity, binding effect or enforceability of any agreement or obligation of the Global Notes” and Republic, such counsel has assumed that each party to such agreement or obligation other than the statements contained in Republic has satisfied those legal requirements that are applicable to it to the Base Prospectus under extent necessary to make such agreement or obligation enforceable against it.
(c) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, United States counsel to the caption “Description of Republic, shall have furnished to the Debt Securities” purport Representatives their written opinion, dated the Closing Date, to describe specific provisions of the effect that:
(i) Assuming that the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) the Indenture has have been duly authorized, executed executed, authenticated, issued and delivered by against payment therefor, the CompanySecurities constitute valid, has been duly qualified under binding and enforceable obligations of the Trust Indenture ActRepublic, and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium insolvency and other similar laws relating to or affecting the creditors’ rights and remedies of creditors generally from time to time in effectgenerally, and subject to general principles of equity, regardless of equity (whether such enforceability enforcement is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject possible judicial action giving effect to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar governmental actions or foreign laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law)creditors’ rights;
(Dii) Assuming that the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Fiscal Agency Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorizationparties thereto, approval or other action bythe Fiscal Agency Agreement constitutes a valid, binding and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation enforceable agreement of the transactions contemplated hereinRepublic, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, subject to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to be applicable to the Company of any U.S. federal or California or Delaware court,
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters Underwriters, as to purchase Shares to be purchased at the Securities Time of Delivery, shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) hereof and at and as of the Closing DateTime of Delivery, to the accuracy in all material respects of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final ProspectusProspectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a)(i); the final term sheet contemplated by Section 5(a)(i), or and any supplement theretoother material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed in with the manner and Commission within the applicable time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, Statement or any notice that would prevent its use, as amended from time to time, part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or threatened.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 issued and no proceeding for that purpose 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 to your reasonable satisfaction;
(b) The Company Shearman & Sterling LLP, counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated the Representatives:Time of Delivery, in form and substance satisfactory to you, with respect to such matters as the Underwriters may reasonably require, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(ic) the opinion of the General Counsel, an Associate The Company’s General Counsel or a Deputy General Counsel such other internal counsel as shall be reasonably acceptable to the Underwriters shall have furnished to you such counsel’s written opinion to the effect set forth in Exhibit A, dated the Time of the CompanyDelivery, or an outside in form and substance satisfactory to you;
(d) ▇▇▇▇▇▇▇ LLP, Maryland counsel for the Company, dated the Closing Date, substantially shall have furnished to you their written opinion to the effect that:
(A) set forth in Exhibit B, dated the Company has been duly incorporated Time of Delivery, in form and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full corporate power and authority substance satisfactory to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken as a wholeyou;
(B) insofar as the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to be applicable to the Company of any U.S. federal or California or Delaware court,
Appears in 1 contract
Sources: Underwriting Agreement (Huntington Bancshares Inc/Md)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Execution Timethough made on, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date hereof and (including the filing of any document incorporated by reference thereinii) on, and as of though made on, the Closing Date, to the accuracy in all material respects of the statements of the Company Republic made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Final ProspectusPrior to the Closing Date, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus 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, or any notice that would prevent its use, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) of this Agreement; and any final term sheet contemplated by Section 4(a) hereof, and any other material required to be filed by the Republic 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.
(b) The Company Head or Acting Head of the Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyRepresentatives such counsel’s written opinion, dated the Closing Date, substantially to the effect that:
(i) The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Republic and the Agreements constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(iv) The Securities have been duly authorized, executed, issued and delivered by the Republic in accordance with the Fiscal Agency Agreement, and, assuming due authentication and delivery by the Fiscal Agent, the Securities constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(v) The obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Securities) of the Republic that will rank equal in right of payment with all other present and future unsecured and unsubordinated External Indebtedness of the Republic;
(vi) There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of any of the Agreements, the issue of the Securities as contemplated herein and in the Prospectus, or the performance or observance by the Republic of any of the terms of the Agreements or the Securities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the due execution, delivery and performance by the Republic of any of the Agreements or the Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for (I) Law 533 of November 11, 1999, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999, (III) the relevant portions of Law 80 of October 28, 1993, (IV) Law 781 of December 20, 2002, (V) Law 1366 of December 21, 2009, (VI) Law 1624 of April 29, 2013, (VII) Decree No. 2681 of December 29, 1993, (VIII) Resolution No. 3727 dated October 20, 2014 of the Ministerio de Hacienda y Crédito Público, (IX) CONPES Document No. 3781 DNP:SC-DEE MINHACIENDA, dated November 8, 2013; (X) Authorization by Act of the Comisión Interparlamentaria de Crédito Público adopted in its meeting held on November 27, 2013 and (XI) External Resolution No. 8 dated August 29, 2014 of the Board of Governors of the Central Bank of Colombia (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not necessary that any Agreement or the Securities be registered, recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 3727 dated October 20, 2014 issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) the publication of the Agreements in the Sistema Electrónico de Contratación Pública-SECOP of the Republic, to satisfy the requirement for such publications, (B) notice to the Banco de la República concerning the external indebtedness represented by the Securities and (C) in accordance with External Resolution No. 8 of August 29, 2014, issued by the Board of Governors of the Central Bank of Colombia, the delivery of written information from the Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público to the Board of Governors of the Central Bank of Colombia regarding the proposed issuance of the Securities, each of which shall be effected on or prior to the Closing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that the Securities are held by a non-resident and non-domiciliary of the Republic;
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process, subject to the terms, conditions, limitations or exceptions under (i) Articles 192, 195, 298 and 299 of Law 1437 of 2011 (Código de Procedimiento Administrativo y de lo Contencioso Administrativo) applicable to administrative or judicial proceedings initiated on or after July 2, 2012; and (ii) Articles 684 and 513 of the Colombian Civil Procedure Code (Código de Procedimiento Civil), (which will be gradually superseded by Articles 593, 594 and 595 et al subject to the entry into force of Law 1564 of 2012 (Código General del Proceso) pursuant to the terms of article 627, paragraph 6 thereof) and Article 19 of Decree 111 of January 15, 1996, pursuant to which the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Fiscal Agency Agreement and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Fiscal Agency Agreement and the Securities as provided in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 16 of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur,” subject to the provisions of (i) Article 693 of the Colombian Civil Procedure Code (Código de Procedimiento Civil), which will be gradually superseded by article 605 subject to the entry into force of Law 1564 of 2012 (Código General del Proceso) pursuant to the terms of article 627, paragraph 6 thereof), which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic; and (ii) subject to compliance with the provisions of Article 694 and 695 of the Colombian Civil Procedure Code (Código de Procedimiento Civil), (which will be gradually superseded by articles 606 and 607, respectively, subject to the entry into force of Law 1564 of 2012 (Código General del Proceso) pursuant to the terms of article 627, paragraph 6 thereof). The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus, as amended or supplemented, and their filing with the Commission have been duly authorized by and on behalf of the Republic, and the Registration Statement, as amended, has been duly executed by and on behalf of the Republic, and the information in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, stated on the authority of public officials of the Republic has been stated in their official capacities thereunto duly authorized;
(xvii) The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Fiscal Agency Agreement, insofar as matters of Colombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Company has been duly incorporated and is validly existing as a corporation in good standing under Registration Statement, at the laws respective times each part became effective, contained an untrue statement of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on fact or omitted to state a material fact required to be stated therein or necessary to make the Company and its subsidiaries, taken as a wholestatements therein not misleading;
(B) insofar No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof 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 to make the statements contained therein, in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description light of the Global Notes” and the statements contained in the Base Prospectus circumstances under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenturewhich they were made, such statements present in all material respects an accurate summary of such provisions;not misleading; and
(C) the Indenture No information 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, come to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to attention that causes such counsel to be applicable believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in the Company Pricing Disclosure Package, as of the Applicable Time, contained any U.S. federal or California or Delaware court,untrue s
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Execution Timethough made on, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date hereof and (including the filing of any document incorporated by reference thereinii) on, and as of though made on, the Closing Date, to the accuracy in all material respects of the statements of the Company Republic made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Final ProspectusPrior to the Closing Date, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus 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, or any notice that would prevent its use, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened.; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) of this Agreement; and any final term sheet contemplated by Section 4(a) hereof, and any other material required to be filed by the Republic 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;
(b) The Company Head or Acting Head of the Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyRepresentatives such counsel’s written opinion, dated the Closing Date, substantially to the effect that:
(i) The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Republic and the Agreements constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(iv) The Securities have been duly authorized, executed, issued and delivered by the Republic in accordance with the Fiscal Agency Agreement, and, assuming due authentication and delivery by the Fiscal Agent, the Securities constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(v) The obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Securities) of the Republic that will rank equal in right of payment with all other present and future unsecured and unsubordinated External Indebtedness of the Republic;
(vi) There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of any of the Agreements, the issue of the Securities as contemplated herein and in the Prospectus, or the performance or observance by the Republic of any of the terms of the Agreements or the Securities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the due execution, delivery and performance by the Republic of any of the Agreements or the Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for (I) Law 533 of November 11, 1999, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999, (III) the relevant portions of Law 80 of October 28, 1993, (IV) Law 781 of December 20, 2002, (V) Decree No. 2681 of December 29, 1993, (VI) Resolution No. 012 dated January 6, 2009 of the Ministerio de Hacienda y Crédito Público, (VII) CONPES Document No. 3537 MINHACIENDA, DNP:SC, dated July 31, 2008, (VIII) Authorization by Act of the Comisión Interparlamentaria de Crédito Público adopted in its meeting held on August 20, 2008 and (IX) External Resolution No. 9 dated September 19, 2008 of the Board of Governors of the Central Bank of Colombia (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not necessary that any Agreement or the Securities be registered, recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General of Public Credit and the National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 012 dated January 6, 2009 issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) a summary of the Agreements in the Diario Único de Contratación Pública of the Republic, to satisfy the requirement for such publications, (B) notice to the Banco de la República concerning the external indebtedness represented by the Securities and (C) in accordance with External Resolution No. 9 of September 19, 2008, issued by the Junta Directiva del Banco de la República, the delivery of written information from the Director General of Public Credit and the National Treasury of the Ministerio de Hacienda y Crédito Público to the Junta Directiva del Banco de la República regarding the proposed issuance of the Securities, each of which shall be effected on or prior to the Closing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that, the Securities are held by a non-resident and non-domiciliary of the Republic.
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process; provided, that, except as provided under Article 177 of the Código Contencioso Administrativo of the Republic, which does not override Articles 684 or 513 of the Código de Procedimiento Civil and Article 19 of Decree 111 of January 15, 1996 of the Republic, the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Fiscal Agency Agreement and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Fiscal Agency Agreement and the Securities as provided in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 16 of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur”, subject to the provisions of Article 693 of the Código de Procedimiento Civil which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic and subject to compliance with the provisions of Article 694 of the Código de Procedimiento Civil. The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus, as amended or supplemented, and their filing with the Commission have been duly authorized by and on behalf of the Republic, and the Registration Statement, as amended, has been duly executed by and on behalf of the Republic, and the information in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, stated on the authority of public officials of the Republic has been stated in their official capacities thereunto duly authorized;
(xvii) The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Fiscal Agency Agreement, insofar as matters of Colombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Company has been duly incorporated and is validly existing as a corporation in good standing under Registration Statement, at the laws respective times each part became effective, contained an untrue statement of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on fact or omitted to state a material fact required to be stated therein or necessary to make the Company and its subsidiaries, taken as a wholestatements therein not misleading;
(B) insofar No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof 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 to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(C) No information has come to such counsel’s attention that causes such counsel to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in 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 the circumstances under which they were made, not misleading. Such counsel may state that he or she is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Disclosure PackageProspectus (except to the extent expressly set forth in (xvii) above) and that such counsel makes no representation that such counsel has independently verified the accuracy, the statements contained in the Final Prospectus under the caption “Description completeness and fairness of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Actexcept as aforesaid), and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, to such counsel’s knowledgeopinions referred to in this subsection (b) are limited to matters of Colombian law and, insofar as the terms opinion required by this subsection (b) is affected by matters of any Material AgreementsUnited States or New York law, or any material decree or regulation known to such counsel to it may be applicable given in reliance upon the opinion required by subsection (c) of this Section 7 and that, insofar as the foregoing opinions relate to the Company of any U.S. federal or California or Delaware court,legality, validit
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Underwritten Units and the Option Units, as the case may be, shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Partnership contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of and any document incorporated by reference therein) and as of the Option Closing DateDate pursuant to Section 3 hereof, to the accuracy in all material respects of the statements of the Company Partnership made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Partnership of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, or and any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required by Rule 433424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Partnership 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, Statement or any notice that would prevent its use, as amended from time to time, use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Partnership shall have requested and caused ▇▇▇▇▇ Lord LLP, counsel to the ▇▇▇▇▇▇ Parties, to have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyUnderwriters their opinion, dated the Closing DateDate and addressed to the Underwriters, substantially to the effect that:
(Ai) Each of the Company Partnership and the Operating Partnership has been duly incorporated formed and is validly existing as a corporation in good standing as a limited partnership under the laws of the State of Delaware, Delaware LP Act with full corporate all necessary limited partnership power and authority to own or lease its properties and to conduct its business as presently conducted and as described in the Registration Statement, Disclosure Package and the Final Prospectus Prospectus, in each case in all material respects. Each of the Partnership and the Operating Partnership has been duly registered or qualified as amended a foreign limited partnership for the transaction of business under the laws of each jurisdiction in which the character of the business conducted by it or supplementedthe nature or location of the properties owned or leased by it makes such registration or qualification necessary, except where such the failure would to so register or qualify does not have a material adverse effect on Material Adverse Effect.
(ii) Each of the Company General Partner and its subsidiaries, taken Operating GP has been duly formed and is validly existing in good standing as a whole;limited liability company under the Delaware LLC Act with all necessary limited liability company power and authority to own or lease its properties and to conduct its business as presently conducted and as described in the Registration Statement, Disclosure Package and the Final Prospectus, in each case in all material respects. The General Partner has all necessary limited liability company power and authority to act as general partner of the Partnership. Operating GP has all necessary limited liability company power and authority to act as general partner of the Operating Partnership. Each of the General Partner and Operating GP has been duly registered or qualified as a foreign limited liability company for the transaction of business under the laws of each jurisdiction in which the character of the business conducted by it or the nature or location of the properties owned or leased by it makes such registration or qualification necessary, except where the failure to so register or qualify does not have a Material Adverse Effect.
(Biii) insofar as The General Partner is the statements contained sole general partner of the Partnership with a 2% general partner interest in the Disclosure PackagePartnership; such general partner interest has been duly authorized and validly issued in accordance with the Partnership Agreement; and the General Partner owns such general partner interest free and clear of all liens, encumbrances, security interests, charges or claims in respect of which a financing statement under the statements contained Uniform Commercial Code of the State of Delaware naming the General Partner as debtor is on file in the office of the Secretary of State of Delaware or otherwise known to such counsel, without independent investigation, in each case other than those created by or arising under the Delaware LP Act, Permitted Liens, applicable securities laws and any restrictions set forth in the governing documents of the ▇▇▇▇▇▇ Parties.
(iv) The General Partner owns all of the Incentive Distribution Rights, ▇▇▇▇▇▇ Resource LLC owns 4,203,823 Common Units, Cross owns 889,444 Common Units and ▇▇▇▇▇▇ Product owns 1,171,265 Common Units; all of such Common Units and the limited partner interests represented thereby and the Incentive Distribution Rights have been duly authorized and validly issued in accordance with the Partnership Agreement, and are fully paid (to the extent required under the Partnership Agreement) and nonassessable (except as such nonassessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act and as otherwise described in the Preliminary Prospectus Supplement and the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at lawThe Partnership Agreement—Limited Liability”); and the Securities General Partner, ▇▇▇▇▇▇ Resource LLC, Cross and ▇▇▇▇▇▇ Product own their respective Common Units and Incentive Distribution Rights free and clear of all liens, encumbrances, security interests, charges or claims in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the General Partner, ▇▇▇▇▇▇ Resource LLC or Cross as debtor is on file in the office of the Secretary of State of Delaware, (B) in respect of which a financing statement under the Uniform Commercial Code of the State of Texas naming ▇▇▇▇▇▇ Product as debtor is on file in the office of the Secretary of State of Texas or (C) otherwise known to such counsel, without independent investigation, in each case other than those created by or arising under the Delaware LP Act, Permitted Liens, applicable securities laws, any restrictions set forth in the governing documents of the ▇▇▇▇▇▇ Parties and, with respect to the Incentive Distribution Rights, any restrictions on transferability set forth in the governing documents of the ▇▇▇▇▇▇ Parties.
(v) The Units to be issued and sold to the Underwriters by the Partnership pursuant to the Underwriting Agreement and the limited partner interests represented thereby have been duly authorized and, when executed and authenticated in accordance with the provisions Partnership Agreement and all necessary partnership and limited liability company action of the Indenture ▇▇▇▇▇▇ Parties and, when issued and delivered to and paid for by the Underwriters against payment therefore in accordance with the terms of this the Underwriting Agreement, will be legalvalidly issued, valid fully paid (to the extent required under the Partnership Agreement) and binding obligations nonassessable (except as such nonassessability may be affected by Sections 17-303, 17-607 and 17-804 of the Company enforceable against Delaware LP Act and as otherwise described in the Company Preliminary Prospectus Supplement and the Final Prospectus under the caption “The Partnership Agreement—Limited Liability”); and other than the Sponsor Units and the Incentive Distribution Rights, the Common Units are the only class of limited partner interests of the Partnership issued and outstanding at the Closing Date.
(vi) The Partnership is the sole member of Operating GP with a 100% limited liability company interest in Operating GP; such limited liability company interest has been duly authorized and validly issued in accordance with their terms the Operating GP Agreement and is fully paid (subject to the extent required under the Operating GP Agreement) and nonassessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act); and the Partnership owns such limited liability company interest free and clear of all liens, encumbrances, security interests, charges or claims in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the Partnership as debtor is on file in the office of the Secretary of State of Delaware or otherwise known to such counsel, without independent investigation, in each case other than those created by or arising under the Delaware LLC Act, Permitted Liens, applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium securities laws and other similar laws relating to or affecting any restrictions set forth in the rights governing documents of the ▇▇▇▇▇▇ Parties.
(vii) Operating GP is the sole general partner of the Operating Partnership with a 0.1% general partner interest in the Operating Partnership; such general partner interest has been duly authorized and remedies of creditors generally from time to time validly issued in effectaccordance with the Operating Partnership Agreement, and subject is fully paid (to the extent required under the Operating GP Agreement), and Operating GP owns such general principles partner interest free and clear of equityall liens, regardless encumbrances, security interests, charges or claims in respect of whether which a financing statement under the Uniform Commercial Code of the State of Delaware naming Operating GP as debtor is on file in the office of the Secretary of State of Delaware or otherwise known to such enforceability is considered counsel, without independent investigation, in a proceeding each case other than those created by or arising under the Delaware LP Act, Permitted Liens, applicable securities laws and any restrictions set forth in equity or at law);the governing documents of the ▇▇▇▇▇▇ Parties.
(Dviii) The Partnership is the Registration Statement sole limited partner of the Operating Partnership with a 99.9% limited partner interest in the Operating Partnership; such limited partner interest has been duly authorized and validly issued in accordance with the Operating Partnership Agreement and is fully paid (to the extent required under the Operating Partnership Agreement) and nonassessable (except as such nonassessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act); and the Partnership owns such limited partner interest free and clear of all liens, encumbrances, security interests, charges or claims in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the Partnership as debtor is on file in the office of the Secretary of State of Delaware or otherwise known to such counsel, without independent investigation, in each case other than those created by or arising under the Delaware LP Act, Permitted Liens, applicable securities laws and any amendments thereto restrictions set forth in the governing documents of the ▇▇▇▇▇▇ Parties.
(ix) The Operating Partnership owns 100% of the outstanding Class A membership interests and 100% of the outstanding Class B membership interests in Redbird; such membership interests have become effective been duly authorized and validly issued in accordance with the Redbird Agreement, are fully paid (to the extent required under the Act; any required filing Redbird Agreement) and nonassessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Base ProspectusDelaware LLC Act); and the Operating Partnership owns such membership interests free and clear of all liens, encumbrances, security interests, charges or claims in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the Operating Partnership as debtor is on file in the office of the Secretary of State of Delaware or otherwise known to such counsel, without independent investigation, in each case other than those created by or arising under the Delaware LLC Act, Permitted Liens, applicable securities laws and any Issuer Free Writing Prospectusrestrictions set forth in the Redbird Agreement.
(x) The Operating Partnership owns 100% of the outstanding membership interests in MOP Midstream; such membership interests have been duly authorized and validly issued in accordance with the MOP Midstream Agreement, are fully paid (to the extent required under the MOP Midstream Agreement) and nonassessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act); and the Operating Partnership owns such membership interests free and clear of all liens, encumbrances, security interests, charges or claims (i) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the Operating Partnership as debtor is on file in the office of the Secretary of State of Delaware or (ii) otherwise known to such counsel, without independent investigation, in each case other than those created by or arising under the Delaware LLC Act, Permitted Liens, applicable securities laws and any Preliminary Prospectus restrictions set forth in the MOP Midstream Agreement.
(xi) The Operating Partnership owns 100% of the outstanding membership interests in NGL; such membership interests have been duly authorized and validly issued in accordance with the NGL Agreement, are fully paid (to the extent required under the NGL Agreement) and nonassessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act); and the Operating Partnership owns such membership interests free and clear of all liens, encumbrances, security interests, charges or claims (i) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the Operating Partnership as debtor is on file in the office of the Secretary of State of Delaware or (ii) otherwise known to such counsel, without independent investigation, in each case other than those created by or arising under the Delaware LLC Act, Permitted Liens, applicable securities laws and any restrictions set forth in the NGL Agreement.
(xii) The Operating Partnership owns 100% of the outstanding membership interests in NGL II; such membership interests have been duly authorized and validly issued in accordance with the NGL II Agreement, are fully paid (to the extent required under the NGL II Agreement) and nonassessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act); and the Operating Partnership owns such membership interests free and clear of all liens, encumbrances, security interests, charges or claims (i) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the Operating Partnership as debtor is on file in the office of the Secretary of State of Delaware or (ii) otherwise known to such counsel, without independent investigation, in each case other than those created by or arising under the Delaware LLC Act, Permitted Liens, applicable securities laws and any restrictions set forth in the NGL II Agreement.
(xiii) Except for rights described in the Final Prospectus, and or for rights that have been waived, there are no preemptive rights or other rights to subscribe for or to purchase, nor any supplements theretorestriction upon the voting or transfer of, any partnership or limited liability company interests in the ▇▇▇▇▇▇ Parties, in each case pursuant to Rule 424(b) the organizational documents or Rule 433 has been made any agreement or other instrument listed as an exhibit to the Registration Statement to which any ▇▇▇▇▇▇ Party is a party or by which any of them may be bound. To such counsel’s knowledge, neither the filing of the Registration Statement nor the offering or sale of the Units as contemplated by this Agreement gives rise to any rights for or relating to the registration of any Units or other securities of any ▇▇▇▇▇▇ Party, except for rights described in the manner Preliminary Prospectus Supplement and within the time period required by Rule 424(b) Final Prospectus or Rule 433, as the case may be; to the best knowledge of for such rights that have been waived. To such counsel’s knowledge, except as described in the Preliminary Prospectus Supplement and the Final Prospectus, there are no stop order suspending outstanding options or warrants to purchase partnership or limited liability company interests in any ▇▇▇▇▇▇ Party.
(xiv) The Partnership has all necessary limited partnership power and authority to issue, sell and deliver the effectiveness of Units, in accordance with and upon the terms and conditions set forth in this Agreement, the Partnership Agreement, the Registration Statement, as amended, or any notice that would prevent its use has been issued Disclosure Package and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;Final Prospectus.
(Exv) this This Agreement has been duly authorized, authorized and validly executed and delivered by each of the ▇▇▇▇▇▇ Parties.
(xvi) Each of the Operative Agreements to which any of the ▇▇▇▇▇▇ Parties is a party has been duly authorized and validly executed and delivered by the Company;
(F) no ▇▇▇▇▇▇ Parties that are parties thereto. Assuming due authorization, approval or execution and delivery by each party other action bythan a ▇▇▇▇▇▇ Party, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation each of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture Act and such as may be required under the blue sky laws of Operative Agreements (other than any jurisdiction in connection with the purchase and distribution of the Securities and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to be applicable to the Company of any U.S. federal or California or Delaware court,Operative Agreement
Appears in 1 contract
Sources: Underwriting Agreement (Martin Midstream Partners Lp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Fund and the Investment Adviser contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of and any document incorporated by reference therein) and as of the Closing Datesettlement date pursuant to Section 4 hereof, to the accuracy in all material respects of the statements of the Company Fund and the Advisers made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Fund or the Advisers of its their obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), Prospectus and any Issuer Free Writing Prospectus shall supplements thereto have been filed in the manner and within the time period required by Rule 433497; and no stop order suspending the effectiveness of the Registration Statement, Statement or any notice that would prevent objecting to its use, as amended from time use or order pursuant to time, Section 8(e) of the 1940 Act shall have been issued and no proceedings for that purpose shall have been instituted or threatenedthreatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or Prospectus or otherwise) shall have been complied with in all material respects.
(b) The Company Fund shall have requested and caused Ropes & ▇▇▇▇ LLP, counsel for the Fund, to have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyRepresentatives their opinion, dated the Closing DateDate and addressed to the Representatives, substantially to the effect that:
(Ai) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(B) insofar as the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the The Registration Statement and any all post-effective amendments thereto filed with the Commission on or before the Closing Date, if any, have become been declared effective under the Act; any required the filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 497 under the Act has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be497; and based upon oral inquiries to the best knowledge of such counselCommission staff, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use Statement has been issued and no proceedings proceeding for that any such purpose is pending or threatened by the Commission;
(ii) The Fund has been duly organized and is validly existing and in good standing as an unincorporated voluntary association (commonly known as a business trust) under and by virtue of the laws of The Commonwealth of Massachusetts and has full power and authority to own or lease its properties and to conduct its business as described in the Preliminary Prospectus and the Prospectus. To such counsel’s knowledge, the Fund has no subsidiaries. The Certificate of Designation relating to the Fund’s conduct of business in the State of New York is on file with the Department of State of the State of New York, and the Fund is entitled to transact intrastate business in the State of California;
(iii) The Fund’s authorized capitalization is as set forth in the Preliminary Prospectus and the Prospectus; the capital stock of the Fund conforms in all material respects to the description thereof contained in the Registration Statement, the Preliminary Prospectus and the Prospectus. The Fund has an indefinite number of authorized common shares of beneficial interest, par value $0.00001 per share. All issued and outstanding common shares of beneficial interest of the Fund have been instituted duly authorized and are validly issued, fully paid and, subject to the following paragraph, non-assessable. The Securities have been duly authorized and, when issued and delivered to the Underwriters against payment therefor in accordance with the terms of this Agreement, will be validly issued, fully paid and, subject to the following paragraph, non-assessable. Except as contemplated by this Agreement and as described in the Preliminary Prospectus and the Prospectus, no person is entitled to any preemptive or are pending other similar rights with respect to the Securities;
(iv) Under Massachusetts law, shareholders could, under certain circumstances, be held personally liable for the obligations of the Fund. However, the Fund’s Declaration of Trust disclaims shareholder liability for acts or contemplated obligations of the Fund and requires that notice of such disclaimer be given in each agreement, obligation, and instrument entered into or executed by the Fund or the Trustees. The Declaration of Trust provides for indemnification out of the property of the Fund for all loss and expense of any shareholder held personally liable solely by reason of being or having been a shareholder of the Fund. Thus, the risk of a shareholder’s incurring financial loss on account of being a shareholder is limited to circumstances in which the Fund itself would be unable to meet its obligations.
(v) The Fund was duly registered under Section 8(a) of the 1940 Act upon receipt by the Commission of the 1940 Act Notification. To our knowledge after oral inquiry of the Commission, the Commission has not issued to the Fund notice of any hearing or other proceeding to consider suspension or revocation of such registration. All required action has been taken by the Fund under the Act, the 1940 Act and the Rules and Regulations in connection with the issuance and sale of the Securities pursuant to this Agreement;
(Evi) this The Fund has full power and authority to enter into each of the Fund Agreements and to perform all of the terms and provisions thereof to be carried out by it. Each Fund Agreement has been duly and validly authorized, executed and delivered by the CompanyFund. Each of the Fund Agreements complies in all material respects with all applicable provisions of the 1940 Act and the Advisers Act, as the case may be, and the rules and regulations thereunder (except we express no opinion as to the reasonableness or fairness of compensation payable under such agreements). Assuming due authorization, execution and delivery by the other parties thereto, each Fund Agreement constitutes the legal, valid and binding obligation of the Fund, enforceable against the Fund in accordance with its terms (except we express no opinion as to the reasonableness or fairness of compensation payable under such agreements), subject as to enforcement to bankruptcy, insolvency, moratorium, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law), including without limitation specific performance regarding intellectual property rights;
(Fvii) no authorizationThe Fund has full power and authority to enter into this Agreement and to perform all of the terms and provisions thereof to be carried out by it. This Agreement has been duly and validly authorized, approval executed and delivered by the Fund;
(viii) None of (a) the execution and delivery by the Fund of this Agreement or any of the Fund Agreements, (b) the issue and sale by the Fund of the Securities as contemplated by this Agreement and (c) the performance by the Fund of its obligations under this Agreement, the Dividend Reinvestment Plan or any of the Fund Agreements or consummation by the Fund of the other action bytransactions contemplated by this Agreement, and no notice tothe Dividend Reinvestment Plan or any of the Fund Agreements conflicts or will conflict with, consent or results or will result in a breach of, order ofthe Declaration of Trust or the By-Laws or any agreement or instrument to which the Fund is a party or by which the Fund is bound (and that is filed as an exhibit to the Registration Statement) or violates or will violate any federal or Massachusetts statute, law or regulation, or filing withany judgment, injunction, order or decree of any U.S. federal or California Massachusetts governmental agency or Delaware body, which violation would have a material adverse effect on the condition or business of the Fund;
(ix) No consent, approval, authorization or order of or registration with any court or governmental authority agency or agency body or securities exchange or securities association is required by the Fund for the consummation by the Fund of the transactions contemplated hereinin this Agreement and the Fund Agreements, except such as (a) have been obtained under the Act, the 1940 Act or the Exchange Act and the Trust Indenture Act and such as (b) may be required by the NYSE or the NASD or under the blue sky state securities or Blue Sky laws of any jurisdiction in connection with the purchase and distribution of the Securities and such other approvals (specified in such opinion) as have been obtained; andby the Underwriters pursuant to this Agreement;
(Gx) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, to To such counsel’s knowledge, based upon a letter dated January 25, 2007, from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Executive Vice President, Global Corporate Client Group, New York Stock Exchange, authorizing the terms Securities for listing on such Exchange, the Securities have been authorized for listing on the New York Stock Exchange and will be admitted and authorized for trading, subject to official notice of any Material Agreementsissuance, and to our knowledge after due inquiry, including oral inquiries of the Commission staff on February 27, 2007, the Exchange Act Registration Statement has become effective;
(xi) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened against the Fund, or to which the Fund or any of its properties is subject, that are required to be described in the Preliminary Prospectus or the Prospectus but are not described therein as required;
(xii) To such counsel’s knowledge, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Preliminary Prospectus or the Prospectus or to be filed as an exhibit to the Registration Statement which have not been so described or filed as an exhibit or incorporated therein by reference;
(xiii) Each of the sections in the Preliminary Prospectus and the Prospectus entitled (i) “Tax Matters,” to the extent that they state matters of United States law or legal conclusions with respect thereto, and (ii) “Anti-Takeover and Other Provisions in the Declaration of Trust,” to the extent hat they summarize the Declaration of Trust, the By-Laws or matters of Massachusetts law or legal conclusions with respect thereto, present a fair summary of the laws and documents described therein; and
(xiv) The Registration Statement (except for the financial statements and schedules, the notes thereto and any schedules and other financial data contained or incorporated by reference therein or omitted therefrom, as to which we express no opinion), at the Effective Date, and the Preliminary Prospectus and the Prospectus (except as aforesaid), as of the date thereof, complied as to form in all material decree respects with the applicable requirements of the Act and the 1940 Act and the Rules and Regulations. Such counsel shall also state that it has not independently verified the accuracy, completeness or regulation known fairness of the statements made or the information contained in the Registration Statement, the Preliminary Prospectus or the Prospectus, or the price to the public, the number of Underwritten Securities and the number of Option Securities to be included on the cover page of the Prospectus (together, “Pricing Information”) and, except in the respects and to the extent set forth in paragraphs (iii), (xii) and (xiii) above, such counsel is not passing upon and does not assume any responsibility therefor. In the course of the preparation by the Fund of the Registration Statement, the Preliminary Prospectus and the Prospectus, such counsel has participated in discussions with your representatives and employees and officers of the Fund and the Advisers and in discussions with the Fund’s independent registered public accounting firm, in which the business and the affairs of the Fund and the Advisers and the contents of the Registration Statement and the Preliminary Prospectus and the Prospectus were discussed. There is no assurance that all material facts as to the Fund, the Advisers and their affairs were disclosed to such counsel or that its familiarity with the Fund and the Investment Adviser or any familiarity with the Sub-Adviser is such that such counsel would have necessarily recognized the materiality of such facts as were disclosed to it, and that such counsel has to a large extent relied upon statements of representatives of the Fund and the Advisers as to the materiality of the facts disclosed to it. Moreover, many of the determinations required to be applicable made in preparation of the Registration Statement, the Preliminary Prospectus and the Prospectus involve matters of a non-legal nature. Further, such counsel is relying exclusively on information provided to it by representatives of the Underwriters and the Investment Adviser with respect to the Pricing Information and has made no independent inquiries regarding the accuracy or veracity thereof. Subject to the foregoing, on the basis of information that such counsel has gained in the course of performing the services referred to above, such opinion shall also provide that no facts have come to such counsel’s attention that would lead it to believe that, (i) as of the effective date of the Registration Statement, 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 in order to make the statements therein not misleading, (ii) as of the time of the pricing of the offering of the Underwritten Securities, the Preliminary Prospectus and the Pricing Information, when taken together as a whole, contained any untrue statement of 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 on the Closing Date, the Prospectus contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and schedules, the notes thereto and any schedules and other financial or accounting data contained or incorporated by reference therein or omitted therefrom, as to which such counsel expresses no opinion). In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Fund, the Advisers and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) You shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Legal Officer of the Investment Adviser, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) The Investment Adviser is a limited liability company and is validly existing and in good standing under the Delaware Limited Liability Company Act (6 Del. C §. 18-101, et seq.) with all necessary limited liability company power and authority to enter into and deliver this Agreement, the Management Agreement, the Portfolio Management Agreement, the Structuring Fee Agreement and the Additional Compensation Agreement (together, the “Investment Adviser Transaction Documents”) and perform its obligations thereunder and to carry on its business as it is now being conducted and as described in the Preliminary Prospectus and the Prospectus. Based solely on (1) a search report of the corporate records of the Secretary of State of the State of California, prepared by Corporation Service Company, dated February __, 2007, showing the “status” of the Investment Adviser as “In Good Standing,” and (2) certificates from public officials in the States of New York and Connecticut, such counsel confirms that the Investment Adviser is qualified to do business in the following States: California, New York and Connecticut, such States being those in which its ownership or leasing of property or its conducting of business may require such qualification and where failure to so qualify may have a material adverse effect on the ability of the Investment Adviser to perform its obligations under the Management Agreement and the Portfolio Management Agreement.
(ii) The execution, delivery and performance of the Investment Adviser Transaction Documents by the Investment Adviser have been duly authorized by all necessary limited liability company action of the Investment Adviser and no other actions on the part of the Investment Adviser or its unitholders or any U.S. federal subsidiary of the Investment Adviser or California or Delaware court,its unitholders is necessary to authorize and c
Appears in 1 contract
Sources: Underwriting Agreement (Nicholas-Applegate Equity & Convertible Income Fund)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Execution Timethough made on, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date hereof and (including the filing of any document incorporated by reference thereinii) on, and as of though made on, the Closing Date, to the accuracy in all material respects of the statements of the Company Republic made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Final ProspectusPrior to the Closing Date, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus 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, or any notice that would prevent its use, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) of this Agreement; and any final term sheet contemplated by Section 4(a) hereof, and any other material required to be filed by the Republic 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.
(b) The Company Head or Acting Head of the Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyRepresentatives such counsel’s written opinion, dated the Closing Date, substantially to the effect that:
(i) The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Republic and the Agreements constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(iv) The Securities have been duly authorized, executed, issued and delivered by the Republic in accordance with the Fiscal Agency Agreement, and, assuming due authentication and delivery by the Fiscal Agent, the Securities constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(v) The obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Securities) of the Republic that will rank equal in right of payment with all other present and future unsecured and unsubordinated External Indebtedness of the Republic;
(vi) There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of any of the Agreements, the issue of the Securities as contemplated herein and in the Prospectus, or the performance or observance by the Republic of any of the terms of the Agreements or the Securities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the due execution, delivery and performance by the Republic of any of the Agreements or the Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for (I) Law 533 of November 11, 1999, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999, (III) the relevant portions of Law 80 of October 28, 1993, (IV) Law 781 of December 20, 2002, (V) Law 1366 of December 21, 2009, (VI) Decree No. 2681 of December 29, 1993, (VII) Resolution No. 902 dated April 6, 2010 of the Ministerio de Hacienda y Crédito Público, (VIII) CONPES Document No. 3642 MINHACIENDA, DNP:SC, dated February 15, 2010, (IX) Authorization by Act of the Comisión Interparlamentaria de Crédito Público adopted in its meeting held on April 6, 2010 and (X) External Resolution No. 3 dated April 8, 2009 of the Board of Governors of the Central Bank of Colombia (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not necessary that any Agreement or the Securities be registered, recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 902 dated April 6, 2010 issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) a summary of the Agreements in the Diario Único de Contratación Pública of the Republic, to satisfy the requirement for such publications, (B) notice to the Banco de la República concerning the external indebtedness represented by the Securities and (C) in accordance with External Resolution No. 3 of April 8, 2009, issued by the Junta Directiva del Banco de la República, the delivery of written information from the Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público to the Junta Directiva del Banco de la República regarding the proposed issuance of the Securities, each of which shall be effected on or prior to the Closing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that the Securities are held by a non-resident and non-domiciliary of the Republic;
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process; provided, that, except as provided under Article 177 of the Código Contencioso Administrativo of the Republic, which does not override Articles 684 or 513 of the Código de Procedimiento Civil and Article 19 of Decree 111 of January 15, 1996 of the Republic, the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Fiscal Agency Agreement and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Fiscal Agency Agreement and the Securities as provided in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 16 of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur”, subject to the provisions of Article 693 of the Código de Procedimiento Civil which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic and subject to compliance with the provisions of Article 694 of the Código de Procedimiento Civil. The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus, as amended or supplemented, and their filing with the Commission have been duly authorized by and on behalf of the Republic, and the Registration Statement, as amended, has been duly executed by and on behalf of the Republic, and the information in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, stated on the authority of public officials of the Republic has been stated in their official capacities thereunto duly authorized;
(xvii) The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Fiscal Agency Agreement, insofar as matters of Colombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Company has been duly incorporated and is validly existing as a corporation in good standing under Registration Statement, at the laws respective times each part became effective, contained an untrue statement of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on fact or omitted to state a material fact required to be stated therein or necessary to make the Company and its subsidiaries, taken as a wholestatements therein not misleading;
(B) insofar No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof 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 to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(C) No information has come to such counsel’s attention that causes such counsel to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in 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 the circumstances under which they were made, not misleading. Such counsel may state that he or she is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Disclosure PackageProspectus (except to the extent expressly set forth in (xvii) above) and that such counsel makes no representation that such counsel has independently verified the accuracy, the statements contained in the Final Prospectus under the caption “Description completeness and fairness of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Actexcept as aforesaid), and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, to such counsel’s knowledgeopinions referred to in this subsection (b) are limited to matters of Colombian law and, insofar as the terms opinion required by this subsection (b) is affected by matters of any Material AgreementsUnited States or New York law, or any material decree or regulation known to such counsel to it may be applicable given in reliance upon the opinion required by subsection (c) of this Section 7 and that, insofar as the foregoing opinions relate to the Company of any U.S. federal or California or Delaware court,le
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Underwritten Units and the Option Units, as the case may be, shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Partnership contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of and any document incorporated by reference therein) and as of the Option Closing DateDate pursuant to Section 3 hereof, to the accuracy in all material respects of the statements of the Company Partnership made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Partnership of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, or and any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required by Rule 433424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Partnership 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, Statement or any notice that would prevent its use, as amended from time to time, use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Partnership shall have requested and caused ▇▇▇▇▇ Lord LLP, counsel to the ▇▇▇▇▇▇ Parties, to have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyUnderwriters their opinion, dated the Closing DateDate and addressed to the Underwriters, substantially to the effect that:
(Ai) Each of the Company Partnership and the Operating Partnership has been duly incorporated formed and is validly existing as a corporation in good standing as a limited partnership under the laws of the State of Delaware, Delaware LP Act with full corporate all necessary limited partnership power and authority to own or lease its properties and to conduct its business as presently conducted and as described in the Registration Statement, Disclosure Package and the Final Prospectus Prospectus, in each case in all material respects. Each of the Partnership and the Operating Partnership has been duly registered or qualified as amended a foreign limited partnership for the transaction of business under the laws of each jurisdiction in which the character of the business conducted by it or supplementedthe nature or location of the properties owned or leased by it makes such registration or qualification necessary, except where such the failure would to so register or qualify does not have a material adverse effect on Material Adverse Effect.
(ii) Each of the Company General Partner and its subsidiaries, taken Operating GP has been duly formed and is validly existing in good standing as a whole;limited liability company under the Delaware LLC Act with all necessary limited liability company power and authority to own or lease its properties and to conduct its business as presently conducted and as described in the Registration Statement, Disclosure Package and the Final Prospectus, in each case in all material respects. The General Partner has all necessary limited liability company power and authority to act as general partner of the Partnership. Operating GP has all necessary limited liability company power and authority to act as general partner of the Operating Partnership. Each of the General Partner and Operating GP has been duly registered or qualified as a foreign limited liability company for the transaction of business under the laws of each jurisdiction in which the character of the business conducted by it or the nature or location of the properties owned or leased by it makes such registration or qualification necessary, except where the failure to so register or qualify does not have a Material Adverse Effect.
(iii) The General Partner is the sole general partner of the Partnership with a 2% general partner interest in the Partnership; such general partner interest has been duly authorized and validly issued in accordance with the Partnership Agreement; and the General Partner owns such general partner interest free and clear of all liens, encumbrances, security interests, charges or claims (A) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the General Partner as debtor is on file in the office of the Secretary of State of Delaware or (B) insofar as otherwise known to such counsel, without independent investigation, in each case other than those created by or arising under the statements contained Delaware LP Act, Permitted Liens, applicable securities laws and any restrictions set forth in the Disclosure Packagegoverning documents of the ▇▇▇▇▇▇ Parties.
(iv) The General Partner owns all of the Incentive Distribution Rights, ▇▇▇▇▇▇ Resource LLC owns 4,203,823 Common Units and Cross owns 889,444 Common Units; all of such Common Units and the statements contained limited partner interests represented thereby and the Incentive Distribution Rights have been duly authorized and validly issued in accordance with the Partnership Agreement, and are fully paid (to the extent required under the Partnership Agreement) and nonassessable (except as such nonassessability may be affected by Section 17-607 of the Delaware LP Act and as otherwise described in the Preliminary Prospectus Supplement and the Final Prospectus under the caption “Description The Partnership Agreement-Limited Liability”); and the General Partner, ▇▇▇▇▇▇ Resource LLC and Cross own their respective Common Units and Incentive Distribution Rights free and clear of all liens, encumbrances, security interests, charges or claims (A) in respect of which a financing statement under the Uniform Commercial Code of the Global Notes” State of Delaware naming the General Partner, ▇▇▇▇▇▇ Resource LLC or Cross as debtor is on file in the office of the Secretary of State of Delaware or (B) otherwise known to such counsel, without independent investigation, in each case other than those created by or arising under the Delaware LP Act, Permitted Liens, applicable securities laws, any restrictions set forth in the governing documents of the ▇▇▇▇▇▇ Parties and, with respect to the Incentive Distribution Rights, any restrictions on transferability set forth in the governing documents of the ▇▇▇▇▇▇ Parties.
(v) The Units to be issued and sold to the Underwriters by the Partnership pursuant to the Underwriting Agreement and the statements contained limited partner interests represented thereby have been duly authorized in accordance with the Partnership Agreement and all necessary partnership and limited liability company action of the ▇▇▇▇▇▇ Parties and, when issued and delivered to the Underwriters against payment therefore in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid (to the extent required under the Partnership Agreement) and nonassessable (except as such nonassessability may be affected by Section 17-303 or Section 17-607 of the Delaware LP Act and as otherwise described in the Base Preliminary Prospectus Supplement and the Final Prospectus under the caption “Description The Partnership Agreement-Limited Liability”); and other than the Sponsor Units and the Incentive Distribution Rights, the Common Units are the only class of limited partner interests of the Debt Securities” purport to describe specific provisions of Partnership issued and outstanding at the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;Closing Date.
(Cvi) The Partnership is the Indenture sole member of Operating GP with a 100% limited liability company interest in Operating GP; such limited liability company interest has been duly authorizedauthorized and validly issued in accordance with the Operating GP Agreement and is fully paid (to the extent required under the Operating Partnership Agreement) and nonassessable (except as such nonassessability may be affected by Section 18-607 of the Delaware LLC Act and as otherwise described in the Preliminary Prospectus Supplement and the Final Prospectus under the caption “The Partnership Agreement-Limited Liability”); and the Partnership owns such limited liability company interest free and clear of all liens, encumbrances, security interests, charges or claims (A) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the Partnership as debtor is on file in the office of the Secretary of State of Delaware or (B) otherwise known to such counsel, without independent investigation, in each case other than those created by or arising under the Delaware LLC Act, Permitted Liens, applicable securities laws and any restrictions set forth in the governing documents of the ▇▇▇▇▇▇ Parties.
(vii) Operating GP is the sole general partner of the Operating Partnership with a 0.1% general partner interest in the Operating Partnership; such general partner interest has been duly authorized and validly issued in accordance with the Operating Partnership Agreement, and is fully paid (to the extent required under the Operating GP Agreement), and Operating GP owns such general partner interest free and clear of all liens, encumbrances, security interests, charges or claims (A) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming Operating GP as debtor is on file in the office of the Secretary of State of Delaware or (B) otherwise known to such counsel, without independent investigation, in each case other than those created by or arising under the Delaware LP Act, Permitted Liens, applicable securities laws and any restrictions set forth in the governing documents of the ▇▇▇▇▇▇ Parties.
(viii) The Partnership is the sole limited partner of the Operating Partnership with a 99.9% limited partner interest in the Operating Partnership; such limited partner interest has been duly authorized and validly issued in accordance with the Operating Partnership Agreement and is fully paid (to the extent required under the Operating Partnership Agreement) and nonassessable (except as such nonassessability may be affected by Sections 17-303 and 17-607 of the Delaware LP Act); and the Partnership owns such limited partner interest free and clear of all liens, encumbrances, security interests, charges or claims (A) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the Partnership as debtor is on file in the office of the Secretary of State of Delaware or (B) otherwise known to such counsel, without independent investigation, in each case other than those created by or arising under the Delaware LP Act, Permitted Liens, applicable securities laws and any restrictions set forth in the governing documents of the ▇▇▇▇▇▇ Parties.
(ix) The Operating Partnership owns 100% of the outstanding Class A membership interests and 100% of the outstanding Class B membership interests in Redbird; such membership interests have been duly authorized and validly issued in accordance with the Redbird Agreement, are fully paid (to the extent required under the Redbird Agreement) and nonassessable (except as such nonassessability may be affected by Section 18-607 of the Delaware LLC Act and as otherwise described in the Preliminary Prospectus Supplement and the Final Prospectus under the caption “The Partnership Agreement-Limited Liability”); and the Operating Partnership owns such membership interests free and clear of all liens, encumbrances, security interests, charges or claims (A) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the Operating Partnership as debtor is on file in the office of the Secretary of State of Delaware or (B) otherwise known to such counsel, without independent investigation, in each case other than those created by or arising under the Delaware LLC Act, Permitted Liens, applicable securities laws and any restrictions set forth in the Redbird Agreement.
(x) Except for rights described in the Final Prospectus, or for rights that have been waived, there are no preemptive rights or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any partnership or limited liability company interests in the ▇▇▇▇▇▇ Parties, in each case pursuant to the organizational documents or any agreement or other instrument listed as an exhibit to the Registration Statement to which any ▇▇▇▇▇▇ Party is a party or by which any of them may be bound. To such counsel's knowledge, neither the filing of the Registration Statement nor the offering or sale of the Units as contemplated by this Agreement gives rise to any rights for or relating to the registration of any Units or other securities of any ▇▇▇▇▇▇ Party, except for rights described in the Preliminary Prospectus Supplement and the Final Prospectus or for such rights that have been waived. To such counsel's knowledge, except as described in the Preliminary Prospectus Supplement and the Final Prospectus, there are no outstanding options or warrants to purchase partnership or limited liability company interests in any ▇▇▇▇▇▇ Party.
(xi) The Partnership has all necessary limited partnership power and authority to issue, sell and deliver the Units, in accordance with and upon the terms and conditions set forth in this Agreement, the Partnership Agreement, the Registration Statement, Disclosure Package and the Final Prospectus.
(xii) This Agreement has been duly authorized and validly executed and delivered by each of the ▇▇▇▇▇▇ Parties.
(xiii) Each of the Operative Agreements to which any of the ▇▇▇▇▇▇ Parties is a party has been duly authorized and validly executed and delivered by the Company▇▇▇▇▇▇ Parties that are parties thereto. Assuming due authorization, has been duly qualified under execution and delivery by each party other than a ▇▇▇▇▇▇ Party, each of the Trust Indenture Act, and Operative Agreements (other than any Operative Agreement governed by law other than Texas law) to which any of the ▇▇▇▇▇▇ Parties is a party constitutes a legal, valid and legally binding obligation of the ▇▇▇▇▇▇ Parties that are parties thereto, enforceable against the Company each such party in accordance with its terms (terms, subject to applicable (A) bankruptcy, insolvency, fraudulent transfer, reorganization, arrangementmoratorium, moratorium fraudulent transfer and other similar laws relating to or affecting the creditors' rights generally and remedies of creditors generally from time to time in effect, and subject to by general principles of equity, equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); ) and the Securities have been duly authorized and(B) public policy, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws law relating to or affecting the rights fiduciary duties and remedies indemnification and contribution and an implied covenant of creditors generally from time to time in effect, good faith and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);fair dealing.
(Dxiv) Except as described in the Registration Statement Statement, Disclosure Package and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, there is no stop order suspending the effectiveness action, suit, inquiry, proceeding or investigation by or before any court or governmental or other regulatory or administrative agency or commission pending or threatened, against or involving any of the Registration Statement, as amended▇▇▇▇▇▇ Parties, or to which any notice of the ▇▇▇▇▇▇ Parties or their properties are subject that would prevent its use has been issued and no proceedings for are required to be described in the Registration Statement or the Final Prospectus that purpose have been instituted or are pending or contemplated under the Act;not described as required therein.
(Exv) None of the offering, issuance and sale of the Units by the Partnership, the execution, delivery or performance of this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of▇▇▇▇▇▇ Parties, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture Act and such as may be required under the blue sky laws of any jurisdiction in connection hereby (A) conflicts with the purchase and distribution of the Securities and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or the fulfillment of the terms hereof will conflict with, result in with or constitutes or will constitute a breach or violation of, or constitute a default under, the charter certificate or by-laws agreement of limited partnership, certificate of formation, limited liability company agreement (or other organizational documents) of any of the Company ▇▇▇▇▇▇ Parties, (B) constitutes or will constitute a breach or violation of, or a default (or an event that, with notice or lapse of time or both, would constitute such a default) under, any Operative Agreement or any other agreement filed as an exhibit to the Registration Statement, (C) violates or will result in any violation of (assuming compliance with all applicable state securities and Blue Sky laws) any applicable Delaware, Texas or federal law or regulation, or, to such counsel’s 's knowledge, the terms any ruling, filing, judgment, injunction, order or decree of any Material AgreementsDelaware, Texas or any material decree federal court or regulation known to such counsel to be government agency applicable to the Company ▇▇▇▇▇▇ Parties, or (D) results in or will result in the creation or imposition of any U.S. federal lien, encumbrance, security interest, charge or California claim (other than Permitted Liens) upon any property or Delaware court,assets of any of the ▇▇▇▇▇▇ Parties, which conflicts, breaches, violations, defaults or liens, encumbrances, security interests, charges or claims, in the case of clauses (B), (C) or (D), would individually or in the aggregate, result in a Material Adverse Effect.
(xvi) No consent, approval, authorization or other order of, or registration, qualification or filing w
Appears in 1 contract
Sources: Underwriting Agreement (Martin Midstream Partners Lp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Execution Timethough made on, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date hereof and (including the filing of any document incorporated by reference thereinii) on, and as of though made on, the Closing Date, to the accuracy in all material respects of the statements of the Company Republic made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Final ProspectusPrior to the Closing Date, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus 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, or any notice that would prevent its use, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) of this Agreement; and any final term sheet contemplated by Section 4(a) hereof, and any other material required to be filed by the Republic 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.
(b) The Company Head or Acting Head of the Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyRepresentatives such counsel’s written opinion, dated the Closing Date, substantially to the effect that:
(i) The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Republic and the Agreements constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(iv) The Securities have been duly authorized, executed, issued and delivered by the Republic in accordance with the Indenture, and, assuming due authentication and delivery by the Trustee, the Securities constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms entitled to the benefits provided by the Indenture;
(v) The obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Securities) of the Republic that will rank without any preference among themselves and equal in right of payment with all other present and future unsecured and unsubordinated External Indebtedness of the Republic;
(vi) There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of any of the Agreements, the issue of the Securities as contemplated herein and in the Prospectus, or the performance or observance by the Republic of any of the terms of the Agreements or the Securities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the due execution, delivery and performance by the Republic of any of the Agreements or the Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for, (I) the relevant portions of Law 80 of October 28, 1993, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999, (III) Law 533 of November 11, 1999, (IV) Law 781 of December 20, 2002, (V) Law 1366 of December 21, 2009, (VI) Law 1624 of April 29, 2013, (VII) Law 1771 of December 30, 2015, (VIII) Decree No. 1068 of May 26, 2015, (IX) Resolution No. 0175 dated January 20, 2020 of the ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇; (X) CONPES Document No. 3967 DNP, MINHACIENDA, dated August 16, 2019; (XI) evidence of publication of this Agreement in the Sistema Eléctronico de Contratación Pública SECOP of the Republic and (XII) Authorization by Act of the Comisión Interparlamentaria de Crédito Público adopted in its meetings held on September 3, 2019 (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not necessary that any Agreement or the Securities be registered, recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General or Acting Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 0175 dated January 20, 2020 issued by Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) the publication of this Agreement in the Sistema Electrónico de Contratación Pública-SECOP of the Republic, to satisfy the requirement for such publications, (B) filing of information before the Colombian Central Bank (Banco de la República) of public external indebtedness report on Form No. 6 (Formulario 6), resulting from the issuance of the Securities under the Indenture each of which shall be effected on or prior to the Closing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that the Securities are held by a non-resident and non-domiciliary of the Republic;
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process, subject to the terms, conditions, limitations or exceptions under (i) Articles 192, 195, 298 and 299 of Law 1437 of 2011 (Código de Procedimiento Administrativo y de lo Contencioso Administrativo); and (ii) Articles 593, 594 and 595 et al of Law 1564 of 2012 (Código General del Proceso); and Article 19 of Decree 111 of January 15, 1996, pursuant to which the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Indenture and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Indenture and the Securities as provided in Section 15 hereof, Section 9.7(a) of the Indenture and Section 16(a) of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur,” subject to the provisions of (i) Article 605 (et al) of Law 1564 of 2012 (Código General del Proceso), which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic; and (ii) subject to compliance with the provisions of Articles 606 and 607 of Law 1564 of 2012 (Código General del Proceso). The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic other than those governing judicial procedures, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly legalized copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus, as amended or supplemented, and their filing with the Commission have been duly authorized by and on behalf of the Republic, and the Registration Statement, as amended, has been duly executed by and on behalf of the Republic, and the information in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, stated on the authority of public officials of the Republic has been stated in their official capacities thereunto duly authorized;
(xvii) The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Indenture, insofar as matters of Colombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Company has been duly incorporated and is validly existing as a corporation in good standing under Registration Statement, at the laws respective times each part became effective, contained an untrue statement of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on fact or omitted to state a material fact required to be stated therein or necessary to make the Company and its subsidiaries, taken as a wholestatements therein not misleading;
(B) insofar No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof 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 to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(C) No information has come to such counsel’s attention that causes such counsel to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in 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 the circumstances under which they were made, not misleading. Such counsel may state that he or she is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Disclosure PackageProspectus (except to the extent expressly set forth in (xvii) above) and that such counsel makes no representation that such counsel has independently verified the accuracy, the statements contained in the Final Prospectus under the caption “Description completeness and fairness of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Actexcept as aforesaid), and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, to such counsel’s knowledgeopinions referred to in this subsection (b) are limited to matters of Colombian law and, insofar as the terms opinion required by this subsection (b) is affected by matters of any Material AgreementsUnited States or New York law, or any material decree or regulation known to such counsel to it may be applicable to given in reliance upon the Company opinion required by subsection (c) of any U.S. federal or California or Delaware court,this Section 7 and that, in
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Shares to be delivered at the Time of Delivery shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Applicable Time, as of the date hereof and the Time of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing DateDelivery, to the accuracy in all material respects of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final ProspectusProspectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; the final term sheet contemplated by Section 5(a) hereof, or and any supplement theretoother material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed in with the manner and Commission within the applicable time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, Statement or any notice that would prevent its use, as amended from time to time, part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or threatened.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 to your reasonable satisfaction;
(b) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the date of such Time of Delivery, with respect to such matters as the Underwriters may reasonably require; ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely as to matters governed by Georgia Law, upon the opinions of the General Counsel of the Company and King & Spalding LLP delivered pursuant to Sections 8(c) and 8(d), respectively;
(c) The General Counsel of the Company shall have furnished to you his written opinion, dated the date of such Time of Delivery, in substantially the form of Annex I(a) hereto;
(d) King & Spalding LLP, counsel for the Company, shall have furnished to you their written opinion, dated the date of such Time of Delivery, in substantially the form of Annex I(b) hereto;
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, 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 Pricing Disclosure Package and the Prospectus;
(f) At the Applicable Time and at the Time of Delivery, the Chief Financial Officer of the Company shall have furnished to you certificates, dated the respective dates of delivery thereof, in substantially the form of Annex II(a) and Annex II(b) hereto;
(i) Neither the Company nor any of its Significant Subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any 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, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus;
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization”, as that term is defined by the Commission for purposes of Section 3(a)(62) of the Exchange Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock;
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus;
(j) The Company shall have filed the Articles of Amendment with the Secretary of State of the State of Georgia prior to the Time of Delivery; and
(k) The Company shall have furnished or caused to be furnished to you at the Representatives:
(i) the opinion Time of the General Counsel, an Associate General Counsel or a Deputy General Counsel Delivery certificates of the Company, or an outside counsel for the Company, dated the Closing Date, substantially to the effect that:
(A) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(B) insofar as the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations officers of the Company enforceable against satisfactory to you as to the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing accuracy of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, representations and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or the fulfillment of the terms hereof will conflict with, result in a breach of, or constitute a default under, the charter or by-laws warranties of the Company orherein at and as of such time, as to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to be applicable to performance by the Company of any U.S. federal all of its obligations hereunder to be performed at or California or Delaware court,prior to such time, as to the matters set forth in subsections (a) and (g) of this Section and as to such other matters as you may reasonably request.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters hereunder, as to purchase the Securities Shares to be delivered at each Time of Delivery, shall be subject subject, in their discretion, to the accuracy in condition that all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date, to the accuracy in all material respects of the other statements of the Company made and the Selling Stockholder herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholder shall have performed all of its and their obligations hereunder theretofore to be performed, and the following additional conditions: The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in any certificates delivered accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, or any supplement thereto, Act shall have been filed in with the manner and Commission within the applicable time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required prescribed for such filing by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, Statement or any notice that would prevent its use, as amended from time to time, part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or threatened.
(b) The Company threatened by the Commission; 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 to your reasonable satisfaction; ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Underwriters, shall have furnished to the Representatives:
(i) the you such written opinion or opinions, dated such Time of the General CounselDelivery, an Associate General Counsel or a Deputy General Counsel of the Companyin form and substance satisfactory to you, or an outside and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters; Fulbright & ▇▇▇▇▇▇▇▇ L.L.P., counsel for the CompanyCompany and the Selling Stockholder, shall have furnished to you their written opinion, dated the Closing Datesuch Time of Delivery, substantially in form and substance satisfactory to you, to the effect that:
(A) the Company : The Selling Stockholder has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, Texas with full corporate power and authority to enter into this Agreement and to perform its obligations hereunder; The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware with corporate power and authority to own or lease its properties and conduct its business as described in the Registration Statement, the Pricing Disclosure Package and Final Prospectus the Prospectus; each of the Subsidiaries which is organized under the laws of the State of Texas or the State of Delaware has been duly organized and is validly existing as amended a corporation, limited partnership or supplementedlimited liability company, as applicable, in good standing under the laws of the jurisdiction of its incorporation or organization, with corporate, limited partnership or limited liability company, as applicable, power and authority to own or lease its properties and conduct its business as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus; the Company and each of the Subsidiaries which is organized under the laws of the State of Texas or the State of Delaware is duly qualified to transact business in Texas, except where such the failure would to qualify could not reasonably be expected to have a Material Adverse Effect; 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 to be sold by the Selling Stockholder) have been duly and validly authorized and issued and are fully paid and non-assessable and conform, in all material adverse effect on respects, to the description of the Common Stock in the Prospectus; the certificates for the Shares, assuming they are in the form filed with the Commission, are in due and proper form and such Shares have not been issued in violation of or subject to any preemptive or similar rights of stockholders arising under the Company's Restated Certificate of Incorporation, Restated Bylaws, as amended, or the Delaware General Corporation Law or, to the knowledge of such counsel, similar rights that entitle or will entitle any person to acquire any shares of Common Stock, with respect to any of the Shares or the sale thereof; Except as described in, or contemplated by the Prospectus, to the knowledge of such counsel, except for options granted under the Company's stock option plans in the ordinary course of business, there are no outstanding securities of the Company convertible or exchangeable into or evidencing the right to purchase or subscribe for any shares of capital stock of the Company and there are no outstanding or authorized options, warrants or rights of any character obligating the Company to issue any shares of its subsidiaries, taken capital stock or any securities convertible or exchangeable into or evidencing the right to purchase or subscribe for any shares of such stock; and except as a whole;
(B) insofar as the statements contained described in the Disclosure PackageRegistration Statement, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities Pricing Disclosure Package or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending holder of any securities of the effectiveness Company or any other person has the right, contractual or otherwise, which has not been satisfied or effectively waived, to cause the Selling Stockholder to sell to them, or to permit them to underwrite the sale of, any of the Shares or the right to have any shares of Common Stock or other securities of the Company included in the Registration Statement or the right, as a result of the filing of the Registration Statement, as amended, to require registration under the Act of any shares of Common Stock or any notice that would prevent its use other securities of the Company; The Registration Statement has been issued become effective under the Act and no stop order proceedings for that purpose with respect thereto have been instituted or are pending or contemplated or, to the knowledge of such counsel, are threatened under the Act;
; The Registration Statement, the Prospectus and each amendment or supplement thereto (Ein each case, other than the financial statements and the notes thereto and the schedules and other financial data included therein, as to which such counsel need not express an opinion) this comply as to form in all material respects with the requirements of the Act and the applicable rules and regulations thereunder; the conditions for the use of Form S-3 by the Company, set forth in the General Instructions thereto, have been satisfied; Subject to the assumptions, qualifications, and limitations set forth in the discussion of the Prospectus under the caption "Certain U.S. Federal Income Tax Considerations to Non-U.S. Holders" (the "Discussion") and based on the accuracy of the facts set forth in the Registration Statement and the Prospectus, the Discussion, insofar as such statements purport to constitute a summary of United States federal income tax law and regulations or legal conclusions with respect thereto, accurately summarizes the matters described therein in all material respects; Such counsel does not know of any contracts or documents required to be filed as exhibits to the Registration Statement or described in the Registration Statement, the Pricing Disclosure Package or the Prospectus which are not so filed or described as required; Such counsel knows of no legal or governmental proceedings pending or threatened to which the Company, any of the Subsidiaries or the Selling Stockholder is a party, by which any of them are bound or to which any of their properties are subject which are required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus and which are not so disclosed; This Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, ; The sale of the Shares being delivered at such Time of Delivery and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the compliance by the Company and the Selling Stockholder with this Agreement and the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated will not (with or the fulfillment without notice or lapse of the terms hereof will time or both) conflict with, with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, (A) any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument which is listed (1) as an exhibit to the charter Company's Annual Report on Form 10-K for the fiscal year ended September 30, 2011 or bythe Company's Quarterly Report on Form 10-laws Q for the fiscal quarter ended December 31, 2011 or (2) in an exhibit to such counsel's opinion letter (which exhibit is to cover all such material agreements to which the Selling Stockholder is a party), (B) the Organizational Documents of the Company or, to such counsel’s knowledge, or the terms of Selling Stockholder or (C) any Material Agreements, statute or any material decree order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, any of the Subsidiaries organized under the laws of the State of Texas or the State of Delaware or the Selling Stockholder or any of their properties; No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the sale of the Shares or the consummation by the Company or the Selling Stockholder of the transactions contemplated by this Agreement, except for (x) the registration under the Act of the offering and the sale of the Shares and (y) such consents, approvals, authorizations, orders, registrations or qualifications as may be required under state securities or Blue Sky laws; The documents incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus or any further amendment or supplement thereto made by the Company prior to such Time of Delivery (in each case, other than the financial statements and the notes thereto and the schedules and other financial data included therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable and the rules and regulations of the Commission thereunder; Neither the Company nor the Selling Stockholder is, and neither of them will become, as a result of the consummation of the transactions contemplated by this Agreement, and application of the net proceeds therefrom, required to register as an investment company under the Investment Company Act; This Agreement has been duly authorized, executed and delivered on behalf of the Selling Stockholder; The Selling Stockholder has full legal right, power and authority, and any approval required by law (other than as required by state securities and Blue Sky laws, as to which such counsel need express no opinion), to sell, assign, transfer and deliver the Shares; and Under the NYUCC, assuming (A) the Shares are in registered form, (B) the Underwriters (or the DTC or its nominee on behalf of the Underwriters) have taken physical delivery and possession of the Shares to be applicable sold to the Company Underwriters by the Selling Stockholder without notice of any U.S. federal "adverse claim" (within the meaning of Section 8-105 of the NYUCC), (C) the Shares have been indorsed to the Underwriters (or California DTC or Delaware court,its nominee on behalf of the Underwriters) in blank or by an effective indorsement, and (iv) payment of the purchase price for the Shares as contemplated in this Agreement, upon the indication by DTC, by "book entry" (within the meaning of Section 8-501(b)(1) of the NYUCC), of the Shares to the securities accounts of the several Underwriters maintained with DTC (the "Securities Accounts"), each of the Underwriters will acquire a valid "security entitlement" (within the meaning of Section 8-102(a)(17) of the NYUCC) in respect of the Shares purchased by such Underwriter and will acquire such Shares free of any "adverse claim" (within the meaning of Section 8-105 of the NYUCC). Such counsel shall also state that, although such counsel has not undertaken, except as otherwise indicated in their opinion, to determine independently, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements in the Registration Statement, the Pricing Disclosure Package and the Prospectus, except to the extent set forth in paragraphs (iv), (vii), (viii) and (ix) above, such counsel has reviewed and is familiar with the Registration Statement, the Pricing Disclosure Package and the Prospectus and such counsel has participated in conferences with officers and other representatives of the Company and the Selling Stockholder, representatives of the Company's independent registered public accounting firm and representatives of and counsel for the Underwriters, at which the contents of the Registration Statement, the Pricing Disclosure Package, and the Prospectus and related matters (including review and discussion of the contents of all documents incorporated therein) were discussed, and no facts have come to such counsel's attention to cause such counsel to believe that:
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Execution Timethough made on, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date hereof and (including the filing of any document incorporated by reference thereinii) on, and as of though made on, the Closing Date, to the accuracy in all material respects of the statements of the Company Republic made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Final ProspectusPrior to the Closing Date, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus 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, or any notice that would prevent its use, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened.; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) of this Agreement; and any final term sheet contemplated by Section 4(a) hereof, and any other material required to be filed by the Republic 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;
(b) The Company Head or Acting Head of the Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyRepresentatives such counsel’s written opinion, dated the Closing Date, substantially to the effect that:
(i) The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Republic and the Agreements constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(iv) The Securities have been duly authorized, executed, issued and delivered by the Republic in accordance with the Fiscal Agency Agreement, and, assuming due authentication and delivery by the Fiscal Agent, the Securities constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(v) The obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Securities) of the Republic that will rank equal in right of payment with all other present and future unsecured and unsubordinated External Indebtedness of the Republic;
(vi) There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of any of the Agreements, the issue of the Securities as contemplated herein and in the Prospectus, or the performance or observance by the Republic of any of the terms of the Agreements or the Securities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the due execution, delivery and performance by the Republic of any of the Agreements or the Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for (I) Law 533 of November 11, 1999, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999, (III) the relevant portions of Law 80 of October 28, 1993, (IV) Law 781 of December 20, 2002, (V) Decree No. 2681 of December 29, 1993, (VI) Resolution No. 2577 dated July 11, 2006 and Resolution No. 2649 dated July 21, 2006 of the Ministerio de Hacienda y Crédito Público, (VII) CONPES Document No. 3423 MINHACIENDA, DNP:SC, dated June 1, 2006, (VIII) Authorization by Act of the Comisión Interparlamentaria de Crédito Público adopted in its meeting held on June 1, 2006 and (IX) External Resolution No. 6 dated June 2, 2006 of the Board of Governors of the Central Bank of Colombia (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not necessary that any Agreement or the Securities be registered, recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General of Public Credit and the National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 2577 dated July 11, 2006 and Resolution No. 2649 dated July 21, 2006 issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) a summary of the Agreements in the Diario Unico de Contratación Pública of the Republic, to satisfy the requirement for such publications, (B) notice to the Banco de la República concerning the external indebtedness represented by the Securities and (C) in accordance with External Resolution No. 6 of June 2, 2006, issued by the Junta Directiva del Banco de la República, the delivery of written information from the Director General of Public Credit of the Ministerio de Hacienda y Crédito Público to the Junta Directiva del Banco de la República regarding the proposed issuance of the Securities, each of which shall be effected on or prior to the Closing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that, the Securities are held by a non-resident and non-domiciliary of the Republic.
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process; provided, that, except as provided under Article 177 of the Código Contencioso Administrativo of the Republic, which does not override Articles 684 or 513 of the Código de Procedimiento Civil and Article 19 of Decree 111 of January 15, 1996 of the Republic, the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Fiscal Agency Agreement and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Fiscal Agency Agreement and the Securities as provided in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 16 of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur”, subject to the provisions of Article 693 of the Código de Procedimiento Civil which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic and subject to compliance with the provisions of Article 694 of the Código de Procedimiento Civil. The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus, as amended or supplemented, and their filing with the Commission have been duly authorized by and on behalf of the Republic, and the Registration Statement, as amended, has been duly executed by and on behalf of the Republic, and the information in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, stated on the authority of public officials of the Republic has been stated in their official capacities thereunto duly authorized;
(xvii) The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Fiscal Agency Agreement, insofar as matters of Colombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Company has been duly incorporated and is validly existing as a corporation in good standing under Registration Statement, at the laws respective times each part became effective, contained an untrue statement of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on fact or omitted to state a material fact required to be stated therein or necessary to make the Company and its subsidiaries, taken as a wholestatements therein not misleading;
(B) insofar No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof 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 to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(C) No information has come to such counsel’s attention that causes such counsel to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in 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 the circumstances under which they were made, not misleading. Such counsel may state that he or she is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Disclosure PackageProspectus (except to the extent expressly set forth in (xvii) above) and that such counsel makes no representation that such counsel has independently verified the accuracy, the statements contained in the Final Prospectus under the caption “Description completeness and fairness of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Actexcept as aforesaid), and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, to such counsel’s knowledgeopinions referred to in this subsection (b) are limited to matters of Colombian law and, insofar as the terms opinion required by this subsection (b) is affected by matters of any Material AgreementsUnited States or New York law, or any material decree or regulation known to such counsel to it may be applicable to given in reliance upon the Company opinion required by subsection (c) of any U.S. federal or California or Delaware court,this Section 7 and that, insofar as the forego
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Securities and Optional Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Timedate hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to Applicable Time and the Closing Date (including or the filing of any document incorporated by reference therein) and as of the Option Closing Date, as the case may be, to the accuracy in all material respects of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final ProspectusProspectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, or and any supplement theretoother material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed in with the manner and Commission within the applicable time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, Statement or any notice that would prevent its use, as amended from time to time, part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or threatenedthreatened 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 to your reasonable satisfaction.
(b) ▇▇▇▇▇▇▇, Head & ▇▇▇▇▇▇▇ LLP, counsel for the Company, 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 Company is validly existing as a corporation in good standing under the laws of the State of Ohio, and is duly registered as a bank holding company and qualified as a financial holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) This Agreement has been duly authorized, executed and delivered by the Company;
(iii) The Deposit Agreement has been duly authorized, executed and delivered by the Company 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;
(iv) The Amendment relating to the Preferred Shares has been duly filed with the Secretary of State of the State of Ohio in accordance with the Ohio General Corporation Act and with all other governmental authorities where such filing is required in order to be effective under Ohio law;
(v) The shares of Preferred Stock represented by Securities being delivered to the Underwriters at such Time of Delivery have been duly authorized and, when issued and delivered as provided in this Agreement, will be duly and validly issued, fully paid and non-assessable, and will have the rights set forth in the Amended Articles of Incorporation, as amended to the Time of Delivery, including the Amendment; and the Common Shares initially issuable upon conversion of the Preferred Stock have been duly authorized and reserved for issuance, when issued in accordance with the provisions of the Securities, will be duly and validly issued, fully paid and nonassessable, and will have the rights set forth in such Amended Articles of Incorporation, as amended to the date such Common Shares are issued upon the conversion of the Preferred Stock, including the Amendment;
(vi) All of the outstanding Common Shares have been duly authorized, and validly issued, and are fully paid and nonassessable;
(vii) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “Description of the Series G Preferred Stock,” “Description of the Common Shares,” “Description of the Depositary Shares” and “Description of Fifth Third Capital Stock” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects. The Securities and the Common Shares conform in all material aspects to the description thereof in the Pricing Prospectus and the Prospectus;
(viii) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Benefit Plan Investor Considerations,” insofar as it purports to constitute a summary of matters of the U.S. Employee Retirement Income Security Act of 1974 and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects;
(ix) The Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act; and
(x) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to each Time of Delivery (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 Securities Act and the rules and regulations thereunder; although they do 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 subsections (v) and (vi) of this Section 6(b), they have no reason to believe (i) that any part of the Registration Statement or any further amendment thereto made by the Company prior to each Time of Delivery (other than the financial statements and related schedules 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 each Time of Delivery, the Prospectus or any further amendment or supplement thereto made by the Company prior to each Time of Delivery (other than the financial statements and related schedules 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 they do 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 Basic Prospectus or the Prospectus which are not filed or incorporated by reference or described as required. In rendering such opinion or opinions, ▇▇▇▇▇▇▇, Head & ▇▇▇▇▇▇▇ LLP may rely (i) as to matters involving the application of laws of the State of New York upon the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP delivered pursuant to Section 6(d); and (ii) as to certain other matters, on certificates of responsible officers of the Company, public officials and others deemed by such counsel to be responsible.
(c) The Company shall have furnished to the Representatives:
(i) Underwriters an opinion, dated the opinion Closing Date or the Option Closing Date, as the case may be, of the General Counsel▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, an Associate General Counsel or a Deputy Esq., General Counsel of the Company, or an outside counsel for the Company, dated the Closing Date, substantially to the effect that:
(Ai) the The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of DelawareOhio, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package Prospectus;
(ii) Fifth Third Bank and Final Prospectus Fifth Third Bank (Michigan) have been duly organized or incorporated and are validly existing as amended a bank or supplementedcorporation in good standing under the laws of its respective jurisdiction of organization or incorporation; and all of the issued shares of capital stock of each such entity have been duly and validly authorized and issued, are fully paid and non-assessable, and (except where for directors’ qualifying shares and except as otherwise set forth in the Prospectus) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims (such failure counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or its subsidiaries, provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates);
(iii) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would not individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(Biv) insofar as the statements contained The documents incorporated by reference in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) the Indenture has been duly authorized, executed and delivered any further amendment or supplement thereto made by the CompanyCompany prior to each Time of Delivery (other than the financial statements and related schedules therein, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject as to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether which such enforceability is considered in a proceeding in equity or at lawcounsel need express no opinion); and the Securities have been duly authorized and, when executed and authenticated in accordance they became effective or were filed with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433Commission, as the case may be, complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and he has no reason to the best knowledge believe that any of such counseldocuments, no stop when such documents became effective or were so filed, as the case may be, contained, in the case of a registration statement which became effective under the Securities Act, 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, in the case of other documents which were filed under the Securities Act or the Exchange Act with the Commission, an untrue statement of a material fact or omitted to state a material fact necessary in order suspending to make the effectiveness statements therein, in the light of the Registration Statementcircumstances under which they were made when such documents were so filed, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Actnot misleading;
(Ev) The Company has all power and authority (corporate and other) necessary to execute and deliver this Agreement has been duly authorizedand the Securities and to perform its obligations hereunder and thereunder; the execution, executed delivery and delivered performance by the Company of this Agreement and the terms of the Securities as established in the Company;
(F) no authorization’s Amended Articles of Incorporation, approval or other action byas amended to each Time of Delivery, the issuance of the Securities, the compliance by the Company with all of the provisions of the Securities and this Agreement, including the issuance of Common Shares upon conversion of the Securities in accordance with the Amendment, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such actions result in any violation of the provisions of the Amended Articles of Incorporation or Code of Regulations of the Company or the charter or by-laws of any of its subsidiaries, or result in any violation of any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties; and
(vi) To the best of such counsel’s knowledge, no consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issue and sale of the Securities or the consummation by the Company of the transactions contemplated by the Underwriting Agreement, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the blue sky state securities or Blue Sky laws of any jurisdiction in connection with the purchase and distribution of the Securities and by the Underwriters. In rendering such other approvals (specified in such opinion) opinion or opinions, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ may rely as have been obtained; and
(G) none to matters involving the application of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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 orState of New York upon the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP delivered pursuant to Section 6(e).
(d) ▇▇▇▇▇▇ & Bird LLP, special tax counsel to the Company, shall have furnished to the Underwriters an opinion, dated the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the Representative and its counsel, including an opinion to the effect statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Certain United States Federal Income Tax Consequences,” insofar as it purports to constitute a summary of U.S. federal income tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(e) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or the Option Closing Date, as the case may be, with respect to such counsel’s knowledgematters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to matters involving the application of laws of the State of Ohio upon the opinions of ▇▇▇▇▇▇▇ Head & ▇▇▇▇▇▇▇ LLP and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq. delivered pursuant to Sections 6(b) and (c), respectively; and (ii) as to certain other matters on certificates of responsible officers of the terms of any Material AgreementsCompany, or any material decree or regulation known to public officials and others deemed by such counsel to be applicable responsible.
(f) On the date of the Prospectus at a time prior to the Company execution of this Agreement, at 9:30 A.M., New York City time, on the effective date of any U.S. federal post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Deloitte & Touche LLP shall have furnished to you a letter or California or Delaware court,letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I hereto (the executed copy of the letter delivered prior to the execution of this Agreement is attached as Annex I(a) hereto and a form of letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery is attached as Annex I(b) hereto).
(i) Neither the Company nor any of its subsidiaries shall have sustained since t
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Execution Timethough made on, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date hereof and (including the filing of any document incorporated by reference thereinii) on, and as of though made on, the Closing Date, to the accuracy in all material respects of the statements of the Company Republic made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Final ProspectusPrior to the Closing Date, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus 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, or any notice that would prevent its use, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened.; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) of this Agreement; and any final term sheet contemplated by Section 4(a) hereof, and any other material required to be filed by the Republic 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;
(b) The Company Head or Acting Head of the Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyRepresentatives such counsel’s written opinion, dated the Closing Date, substantially to the effect that:
(i) The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Republic and the Agreements constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(iv) The Securities have been duly authorized, executed, issued and delivered by the Republic in accordance with the Fiscal Agency Agreement, and, assuming due authentication and delivery by the Fiscal Agent, the Securities constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(v) The obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Securities) of the Republic that will rank equal in right of payment with all other present and future unsecured and unsubordinated External Indebtedness of the Republic;
(vi) There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of any of the Agreements, the issue of the Securities as contemplated herein and in the Prospectus, or the performance or observance by the Republic of any of the terms of the Agreements or the Securities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the due execution, delivery and performance by the Republic of any of the Agreements or the Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for (I) Law 533 of November 11, 1999, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999, (III) the relevant portions of Law 80 of October 28, 1993, (IV) Law 781 of December 20, 2002, (V) Decree No. 2681 of December 29, 1993, (VI) Resolution No. 3100 dated September 4, 2006 of the Ministerio de Hacienda y Crédito Público, (VII) CONPES Document No. 3423 MINHACIENDA, DNP:SC, dated June 1, 2006, (VIII) Authorization by Act of the Comisión Interparlamentaria de Crédito Público adopted in its meeting held on June 1, 2006 and (IX) External Resolution No. 6 dated June 2, 2006 of the Board of Governors of the Central Bank of Colombia (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not necessary that any Agreement or the Securities be registered, recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General of Public Credit and the National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 3100 dated September 4, 2006 issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) a summary of the Agreements in the Diario Unico de Contratación Pública of the Republic, to satisfy the requirement for such publications, (B) notice to the Banco de la República concerning the external indebtedness represented by the Securities and (C) in accordance with External Resolution No. 6 of June 2, 2006, issued by the Junta Directiva del Banco de la República, the delivery of written information from the Director General of Public Credit of the Ministerio de Hacienda y Crédito Público to the Junta Directiva del Banco de la República regarding the proposed issuance of the Securities, each of which shall be effected on or prior to the Closing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that, the Securities are held by a non-resident and non-domiciliary of the Republic.
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process; provided, that, except as provided under Article 177 of the Código Contencioso Administrativo of the Republic, which does not override Articles 684 or 513 of the Código de Procedimiento Civil and Article 19 of Decree 111 of January 15, 1996 of the Republic, the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Fiscal Agency Agreement and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Fiscal Agency Agreement and the Securities as provided in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 16 of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur”, subject to the provisions of Article 693 of the Código de Procedimiento Civil which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic and subject to compliance with the provisions of Article 694 of the Código de Procedimiento Civil. The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus, as amended or supplemented, and their filing with the Commission have been duly authorized by and on behalf of the Republic, and the Registration Statement, as amended, has been duly executed by and on behalf of the Republic, and the information in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, stated on the authority of public officials of the Republic has been stated in their official capacities thereunto duly authorized;
(xvii) The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Fiscal Agency Agreement, insofar as matters of Colombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Company has been duly incorporated and is validly existing as a corporation in good standing under Registration Statement, at the laws respective times each part became effective, contained an untrue statement of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on fact or omitted to state a material fact required to be stated therein or necessary to make the Company and its subsidiaries, taken as a wholestatements therein not misleading;
(B) insofar No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof 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 to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(C) No information has come to such counsel’s attention that causes such counsel to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in 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 the circumstances under which they were made, not misleading. Such counsel may state that he or she is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Disclosure PackageProspectus (except to the extent expressly set forth in (xvii) above) and that such counsel makes no representation that such counsel has independently verified the accuracy, the statements contained in the Final Prospectus under the caption “Description completeness and fairness of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Actexcept as aforesaid), and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, to such counsel’s knowledgeopinions referred to in this subsection (b) are limited to matters of Colombian law and, insofar as the terms opinion required by this subsection (b) is affected by matters of any Material AgreementsUnited States or New York law, or any material decree or regulation known to such counsel to it may be applicable given in reliance upon the opinion required by subsection (c) of this Section 7 and that, insofar as the foregoing opinions relate to the Company of any U.S. federal legality, validity, binding effect or California or Delaware court,enforceability
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Execution Timethough made on, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date hereof and (including the filing of any document incorporated by reference thereinii) on, and as of though made on, the Closing Date, to the accuracy in all material respects of the statements of the Company Republic made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Final ProspectusPrior to the Closing Date, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus 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, or any notice that would prevent its use, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened.; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) of this Agreement; and any final term sheet contemplated by Section 4(a) hereof, and any other material required to be filed by the Republic 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;
(b) The Company Head or Acting Head of the Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyRepresentatives such counsel’s written opinion, dated the Closing Date, substantially to the effect that:
(i) The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Republic and the Agreements constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(iv) The Securities have been duly authorized, executed, issued and delivered by the Republic in accordance with the Fiscal Agency Agreement, and, assuming due authentication and delivery by the Fiscal Agent, the Securities constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(v) The obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Securities) of the Republic that will rank equal in right of payment with all other present and future unsecured and unsubordinated External Indebtedness of the Republic;
(vi) There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of any of the Agreements, the issue of the Securities as contemplated herein and in the Prospectus, or the performance or observance by the Republic of any of the terms of the Agreements or the Securities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the due execution, delivery and performance by the Republic of any of the Agreements or the Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for (I) Law 533 of November 11, 1999, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999, (III) the relevant portions of Law 80 of October 28, 1993, (IV) Law 781 of December 20, 2002, (V) Decree No. 2681 of December 29, 1993, (VI) Resolution No. 5129 dated October 30, 2006 of the Ministerio de Hacienda y Crédito Público, (VII) CONPES Document No. 3423 MINHACIENDA, DNP:SC, dated June 1, 2006, (VIII) Authorization by Act of the Comisión Interparlamentaria de Crédito Público adopted in its meeting held on June 1, 2006 and (IX) External Resolution No. 6 dated June 2, 2006 of the Board of Governors of the Central Bank of Colombia (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not necessary that any Agreement or the Securities be registered, recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General of Public Credit and the National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 5129 dated October 30, 2006 issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) a summary of the Agreements in the Diario Unico de Contratación Pública of the Republic, to satisfy the requirement for such publications, (B) notice to the Banco de la República concerning the external indebtedness represented by the Securities and (C) in accordance with External Resolution No. 6 of June 2, 2006, issued by the Junta Directiva del Banco de la República, the delivery of written information from the Director General of Public Credit and the National Treasury of the Ministerio de Hacienda y Crédito Público to the Junta Directiva del Banco de la República regarding the proposed issuance of the Securities, each of which shall be effected on or prior to the Closing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that, the Securities are held by a non-resident and non-domiciliary of the Republic.
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process; provided, that, except as provided under Article 177 of the Código Contencioso Administrativo of the Republic, which does not override Articles 684 or 513 of the Código de Procedimiento Civil and Article 19 of Decree 111 of January 15, 1996 of the Republic, the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Fiscal Agency Agreement and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Fiscal Agency Agreement and the Securities as provided in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 16 of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur”, subject to the provisions of Article 693 of the Código de Procedimiento Civil which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic and subject to compliance with the provisions of Article 694 of the Código de Procedimiento Civil. The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus, as amended or supplemented, and their filing with the Commission have been duly authorized by and on behalf of the Republic, and the Registration Statement, as amended, has been duly executed by and on behalf of the Republic, and the information in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, stated on the authority of public officials of the Republic has been stated in their official capacities thereunto duly authorized;
(xvii) The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Fiscal Agency Agreement, insofar as matters of Colombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Company has been duly incorporated and is validly existing as a corporation in good standing under Registration Statement, at the laws respective times each part became effective, contained an untrue statement of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on fact or omitted to state a material fact required to be stated therein or necessary to make the Company and its subsidiaries, taken as a wholestatements therein not misleading;
(B) insofar No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof 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 to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(C) No information has come to such counsel’s attention that causes such counsel to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in 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 the circumstances under which they were made, not misleading. Such counsel may state that he or she is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Disclosure PackageProspectus (except to the extent expressly set forth in (xvii) above) and that such counsel makes no representation that such counsel has independently verified the accuracy, the statements contained in the Final Prospectus under the caption “Description completeness and fairness of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Actexcept as aforesaid), and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, to such counsel’s knowledgeopinions referred to in this subsection (b) are limited to matters of Colombian law and, insofar as the terms opinion required by this subsection (b) is affected by matters of any Material AgreementsUnited States or New York law, or any material decree or regulation known to such counsel to it may be applicable given in reliance upon the opinion required by subsection (c) of this Section 7 and that, insofar as the foregoing opinions relate to the Company of any U.S. federal or California or Delaware court,legality, validity, binding e
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Execution Timethough made on, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date hereof and (including the filing of any document incorporated by reference thereinii) on, and as of though made on, the Closing Date, to the accuracy in all material respects of the statements of the Company Republic made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Final ProspectusPrior to the Closing Date, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus 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, or any notice that would prevent its use, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) of this Agreement; and any final term sheet contemplated by Section 4(a) hereof, and any other material required to be filed by the Republic 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.
(b) The Company Head or Acting Head of the Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyRepresentatives such counsel’s written opinion, dated the Closing Date, substantially to the effect that:
(i) The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Republic and the Agreements constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(iv) The Securities have been duly authorized, executed, issued and delivered by the Republic in accordance with the Indenture, and, assuming due authentication and delivery by the Trustee, the Securities constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms entitled to the benefits provided by the Indenture;
(v) The obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Securities) of the Republic that will rank without any preference among themselves and equal in right of payment with all other present and future unsecured and unsubordinated External Indebtedness of the Republic;
(vi) There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of any of the Agreements, the issue of the Securities as contemplated herein and in the Prospectus, or the performance or observance by the Republic of any of the terms of the Agreements or the Securities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the due execution, delivery and performance by the Republic of any of the Agreements or the Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for, (I) the relevant portions of Law 80 of October 28, 1993, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999 (III) Law 533 of November 11, 1999, (IV) Law 781 of December 20, 2002, (V) Law 1366 of December 21, 2009, (VI) Law 1624 of April 29, 2013, (VII) Law 1771 of December 30, 2015, (VIII) Law 2073 of December 31, 2020, (IX) Decree No. 1068 of May 26, 2015, (X) CONPES Document No. 3967 DNP, MINHACIENDA, dated August 16, 2019; (XI) evidence of publication of this Agreement in the Sistema Eléctronico de Contratación Pública SECOP of the Republic, (XII) Authorization by Act of the Comisión Interparlamentaria de Crédito Público adopted in its meetings held on September 3, 2019, and (XIII) Resolution No. 0039 dated January 12, 2021 of the Ministerio de Hacienda y Crédito Público (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not necessary that any Agreement or the Securities be registered, recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General or Acting Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 0039 dated January 12, 2021 issued by Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) the publication of this Agreement in the Sistema Electrónico de Contratación Pública-SECOP of the Republic, to satisfy the requirement for such publications, and (B) filing of information before the Colombian Central Bank (Banco de la República) of public external indebtedness report on Form No. 6 (Formulario 6), resulting from the issuance of the Securities under the Indenture each of which shall be effected on or prior to the Closing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that the Securities are held by a non-resident and non-domiciliary of the Republic;
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process, subject to the terms, conditions, limitations or exceptions under (i) Articles 192, 195, 298 and 299 of Law 1437 of 2011 (Código de Procedimiento Administrativo y de lo Contencioso Administrativo); and (ii) Articles 593, 594 and 595 et al of Law 1564 of 2012 (Código General del Proceso); and Article 19 of Decree 111 of January 15, 1996, pursuant to which the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Indenture and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Indenture and the Securities as provided in Section 15 hereof, Section 9.7(a) of the Indenture and Section 16(a) of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur,” subject to the provisions of (i) Article 605 (et al) of Law 1564 of 2012 (Código General del Proceso), which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic; and (ii) subject to compliance with the provisions of Articles 606 and 607 of Law 1564 of 2012 (Código General del Proceso). The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic other than those governing judicial procedures, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly legalized copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus, as amended or supplemented, and their filing with the Commission have been duly authorized by and on behalf of the Republic, and the Registration Statement, as amended, has been duly executed by and on behalf of the Republic, and the information in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, stated on the authority of public officials of the Republic has been stated in their official capacities thereunto duly authorized;
(xvii) The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Indenture, insofar as matters of Colombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Company has been duly incorporated and is validly existing as a corporation in good standing under Registration Statement, at the laws respective times each part became effective, contained an untrue statement of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on fact or omitted to state a material fact required to be stated therein or necessary to make the Company and its subsidiaries, taken as a wholestatements therein not misleading;
(B) insofar No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof 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 to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(C) No information has come to such counsel’s attention that causes such counsel to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in 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 the circumstances under which they were made, not misleading. Such counsel may state that he or she is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Disclosure PackageProspectus (except to the extent expressly set forth in (xvii) above) and that such counsel makes no representation that such counsel has independently verified the accuracy, the statements contained in the Final Prospectus under the caption “Description completeness and fairness of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Actexcept as aforesaid), and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, to such counsel’s knowledgeopinions referred to in this subsection (b) are limited to matters of Colombian law and, insofar as the terms opinion required by this subsection (b) is affected by matters of any Material AgreementsUnited States or New York law, or any material decree or regulation known to such counsel to it may be applicable to given in reliance upon the Company of any U.S. federal or California or Delaware court,opinion required by sub
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Offered Securities shall be are subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date, to the accuracy in all material respects of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditions:
(ai) The Final ProspectusRegistration Statement (or if a post-effective amendment thereto is required to be filed under the Act, or any supplement thereto, such post-effective amendment) shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required by Rule 433become effective; and no stop order suspending the effectiveness of the Registration StatementStatement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Act shall be pending before or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Act) and in accordance with Section 5(a) hereof; (ii) all representations and warranties of the Bank in or incorporated by reference in the Terms Agreement relating to the Offered Securities are, at and as of the Closing Date for such Offered Securities, true and correct and the statements of the Bank and its officers made in any certificates delivered pursuant to the Standard Provisions shall be true and correct on and as of the Closing Date; (iii) the Bank shall have performed all of its obligations under the Terms Agreement required to be performed; (iv) there shall not have occurred any downgrading in the rating accorded any debt securities of the Bank by Standard & Poor’s Corporation or M▇▇▇▇’▇ Investors Service, Inc., or any notice that would prevent its use, as amended from time to time, public announcement by either such organization of an intended or potential downgrading; (v) and all requests by the Commission for additional information shall have been issued complied with to the reasonable satisfaction of the Representatives and no proceedings for that purpose (vi) there shall have been instituted no material adverse change in the financial condition, earnings, business or threatened.
(b) The Company shall have furnished to the Representatives:
(i) the opinion operations of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the Company, dated the Closing Date, substantially to the effect that:
(A) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company Bank and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, the Time of Sale Information (excluding any amendment or supplement thereto) and the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of the Terms Agreement), which, in the judgment of the Underwriters, makes it impracticable to market the Offered Securities on the terms and in the manner contemplated in the Terms Agreement, the Registration Statement, the Time of Sale Information and the Prospectus.
(b) the Representatives shall have received at the Closing Date a favorable opinion of O▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, Canadian counsel for the Bank, subject to such exceptions and qualifications as would be customary, to the effect that:
(i) the Bank validly exists as a Schedule I bank under the Bank Act (Canada) and has the corporate power to create, issue and sell the Offered Securities;
(Bii) insofar as the statements contained issue, sale and delivery of the Offered Securities have been duly authorized by the Bank and all necessary corporate action has been taken by the Bank to validly issue the Offered Securities;
(iii) the Terms Agreement has been duly authorized, executed and, to the extent delivery is a matter governed by the laws of the Province of Québec or Ontario and the federal laws of Canada applicable therein, delivered by the Bank;
(iv) the Indenture has been duly authorized, executed and, to the extent delivery is a matter governed by the laws of the Province of Québec or Ontario and the federal laws of Canada applicable therein, delivered by the Bank and, with respect to the provisions thereof governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, constitutes a legal, valid and binding obligation of the Bank 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;
(v) the Disclosure Packageexecution and delivery by the Bank of, and the performance by the Bank of its obligations under the Terms Agreement, the statements contained Indenture and the Offered Securities do not contravene any existing provision of applicable law or result in the Final Prospectus under the caption “Description a breach (whether after notice or lapse or time or both) of any of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific terms, conditions or provisions of the Bank Act (Canada) or the by-laws of the Bank;
(vi) no registration, filing or recording of the Indenture under the laws of the Province of Québec or Ontario and the federal laws of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Indenture or the Offered Securities;
(vii) no consent, approval or authorization of, or registration, recordation or filing with, any governmental body or agency in Canada is required on the part of the Bank pursuant to the laws of the Province of Québec and the federal laws of Canada applicable therein for the issuance and sale by the Bank of the Offered Securities or to the Underwriters pursuant to the Terms Agreement and the Indenture, except such as have been obtained under the Bank Act (Canada) and the Québec Securities Laws;
(viii) to the best of such counsel’s knowledge after due inquiry, (A) there are no reports or information that in accordance with the requirements of Québec Securities Laws must be made publicly available in connection with the offering of the Offered Securities that have not been made publicly available as required, and (B) there are no documents required to be filed with the AMF in connection with the Prospectus or any amendment or supplement thereto, any Preliminary Prospectus or any Time of Sale Information that have not been filed as required; and
(ix) the Shelf Prospectus and the documents incorporated by reference therein (except for the financial statements present and other financial and statistical data included therein or omitted therefrom, as to which such counsel express no opinion), when they were filed with the AMF under Québec Securities Laws, appear on their face to have been appropriately responsive in all material respects an accurate summary to the requirements of such provisionsQuébec Securities Laws as interpreted and applied by the AMF;
(x) Such counsel’s opinion as summarized in the Prospectus under the heading “Limitations on Enforcement of U.S. Laws Against RBC, our Management and Others” regarding enforceability of U.S. securities laws is true and correct.
(c) The Representatives shall have received at the Closing Date a favorable opinion or opinions and letter of S▇▇▇▇▇▇▇ & C▇▇▇▇▇▇▇ LLP, United States counsel for the Bank, to the effect that:
(i) assuming the Terms Agreement has been duly authorized, executed and delivered by the Bank insofar as the laws of Canada, Québec and Ontario are concerned, the Terms Agreement has been duly executed and delivered by the Bank;
(ii) all regulatory consents, authorizations, approvals and filings required to be obtained or made by the Bank under the federal laws of the United States and the laws of the State of New York for the issuance, sale and delivery of the Offered Securities by the Bank to the Underwriters have been obtained or made;
(iii) assuming the Indenture has been duly authorized, executed and delivered by the CompanyBank insofar as the laws of Canada, Québec and Ontario are concerned, it has been duly qualified under executed and delivered by the Trust Indenture ActBank, and constitutes a legal, valid and legally binding obligation of the Bank enforceable against the Company in accordance with its terms (terms, subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws of general applicability relating to or affecting the creditors’ rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law); and principles;
(iv) assuming the Offered Securities have been duly authorized andauthorized, when executed and authenticated in accordance with the provisions of the Indenture executed, issued and delivered to and paid for by the Underwriters in accordance with Bank insofar as the terms laws of this AgreementCanada, will be legalQuébec and Ontario are concerned, they have been duly executed, authenticated, issued and delivered by the Bank, and constitute the valid and legally binding obligations of the Company Bank enforceable against the Company in accordance with their terms (terms, subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws of general applicability relating to or affecting the creditors’ rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law)principles;
(Dv) assuming the validity of such action under the laws of Canada, Québec and Ontario, under the laws of the State of New York relating to submission of personal jurisdiction, the Bank has validly and effectively submitted to the personal jurisdiction of any state or Federal court in The City of New York, State of New York and has validly appointed National Corporate Research, Ltd. as its authorized agent for the purposes described in Section 14 of the Terms Agreement; and
(vi) the Bank is not required to register as an “investment company” under the Investment Company Act of 1940. Such counsel shall also furnish a letter stating that they have reviewed the Registration Statement Statement, the Time of Sale Information and any amendments thereto the Prospectus as amended or supplemented and participated in discussions with representatives of the Bank, its Canadian counsel and its accountants and representatives of the Underwriters and their U.S. counsel; and on the basis of the information they gained in the course of the performance of such services, considered in the light of their understanding of the applicable law (including the requirements of Form F-9 and the character of the prospectus contemplated thereby) and the experience they have become effective gained through their practice under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; such counsel shall confirm to the best knowledge of such counsel, no stop order suspending the effectiveness of Underwriters that the Registration Statement, as amendedof its effective date, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorizedTime of Sale Information, executed and delivered by as of the Company;
(F) no authorization, approval or other action byTime of Sale, and no notice tothe Prospectus as amended or supplemented, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation as of the transactions contemplated hereindate of the prospectus supplement, except such as have been obtained under appeared on their face to be appropriately responsive in all material respects to the requirements of the Act, the Exchange Act and the Trust Indenture Act and the applicable rules and regulations of the Commission thereunder; and nothing that came to the attention of such counsel in the course of their review has caused them to believe that the Registration Statement, at the time of its effective date, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, that the Time of Sale Information, at the Time of Sale (which such counsel may assume to be the date of the Underwriting Agreement) 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 that 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 and other financial information contained therein, as to which such counsel need express no belief). Such opinion and letter may be required state (1) that the limitations inherent in the independent verification of factual matters and the character of determinations involved in the registration process are such that such counsel do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Time of Sale Information, the Prospectus or the prospectus supplement except for those made under the blue sky captions “Description of Securities We May Offer” and “Plan of Distribution” in the Prospectus and “Description of the Notes” and “Underwriting” in any prospectus supplement or Time of Sale Information insofar as they relate to provisions of the Offered Securities, the Indenture or the Terms Agreement therein described, (2) that they do not express any opinion or belief as to the financial statements or other financial data contained in the Registration Statement, the Time of Sale Information or the Prospectus or the prospectus supplement, or as to the statement of eligibility and qualification of the Trustee under the Indenture under which the Offered Securities are being issued, or as to any statement of the Bank or its Canadian counsel with respect to the laws of any Canada, Québec or Ontario, in each case, in the Registration Statement, the Time of Sale Information or the Prospectus or in documents incorporated by reference therein, (3) that they assume that (A) the principal jurisdiction in Canada designated by the Bank in connection with the purchase and distribution offering of the Offered Securities is the Province of Québec, (B) the Shelf Prospectus, as supplemented, would be the entire disclosure document used to offer the Offered Securities if the offering of Offered Securities was being made in the Province of Québec, (C) the exhibits to the Registration Statement and the documents incorporated in the Shelf Prospectus by reference are the only reports or information that in accordance with the requirements of Québec Securities Law must be made publicly available in connection with the offering of the Offered Securities and (D) the Shelf Prospectus was prepared in accordance with the disclosure requirements of the Province of Québec as interpreted and applied in accordance with Québec Securities Laws (4) that they are not expressing any opinion as the responsiveness of the documents referred to above to the requirements of the laws of Canada, Québec and Ontario, (5) that they are passing only upon matters of United States federal and New York law and that they are relying on the opinion of O▇▇▇▇▇ ▇▇▇▇▇▇▇, Canadian counsel for the Bank, with respect to matters of Canadian law (including compliance with all legal requirements as interpreted and applied by the AMF), and (6) that their opinion or opinions are subject to any qualifications in the opinion of such Canadian counsel for the Bank.
(d) The Representatives shall have received at the Closing Date an opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, counsel for the Underwriters, dated the Closing Date, in form and substance satisfactory to the Underwriters with respect to the Registration Statement, the Prospectus, the Offered Securities and such other approvals (specified in such opinion) as have been obtained; andmatters that the Representatives may reasonably request.
(Ge) none The Representatives shall have received at the Closing Date a letter dated the date thereof, in form and substance reasonably satisfactory to the Representatives, from each Auditor, constituting statements and information of the issue type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and sale certain financial information contained in or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus.
(f) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the SecuritiesBank, to the consummation of any other effect set forth in Section 8(a)(iv) above and to the effect that the representations and warranties of the transactions herein contemplated or Bank contained in the fulfillment Terms Agreement are true and correct as of the terms hereof will conflict with, result in a breach of, or constitute a default under, Closing Date and that the charter or by-laws Bank has complied with all of the Company or, to such counsel’s knowledge, agreements and satisfied all of the terms of any Material Agreements, or any material decree or regulation known to such counsel conditions on its part to be applicable to performed or satisfied hereunder on or before the Company of any U.S. federal or California or Delaware court,Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Notes shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Timedate hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) Applicable Time and as of the Closing Date, to the accuracy in all material respects of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final ProspectusProspectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, or and any supplement theretoother material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed in with the manner and Commission within the applicable time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, Statement or any notice that would prevent its use, as amended from time to time, part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or threatenedthreatened 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 to your reasonable satisfaction.
(b) ▇▇▇▇▇▇▇ Head & ▇▇▇▇▇▇▇ LLP, counsel for the Company, shall have furnished to the Underwriters an opinion, dated the Closing Date, to the effect that:
(i) The Company is validly existing as a corporation in good standing under the laws of the State of Ohio, and is duly registered as a bank holding company and qualified as a financial holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus; FTB SENIOR DEBT 2008 – UNDERWRITING AGREEMENT
(ii) This Agreement has been duly authorized, executed and delivered by the Company;
(iii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity and an implied covenant of good faith and fair dealing; and the Indenture has been duly qualified under the Trust Indenture Act;
(iv) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Trustee in the manner provided in the Indenture, the Notes will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity and an implied covenant of good faith and fair dealing;
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “Description of Notes,” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects;
(vi) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act;
(vii) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (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 Securities Act and the Trust Indenture Act and the rules and regulations thereunder; although they do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Prospectus or the FTB SENIOR DEBT 2008 – UNDERWRITING AGREEMENT Prospectus, except for those referred to in the opinion in subsection (v) of this Section 6(b), they have no reason to believe (i) that any part of the Registration Statement or any further amendment thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules 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 Time of Delivery, the Prospectus or any further amendment or supplement thereto made by the Company prior to each Time of Delivery (other than the financial statements and related schedules 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 they do 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 Basic Prospectus or the Prospectus which are not filed or incorporated by reference or described as required. In rendering such opinion or opinions, ▇▇▇▇▇▇▇ Head & ▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Trustee upon the certificate or certificates of such entity, (ii) as to matters involving the application of laws of the State of New York upon the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP delivered pursuant to Section 6(d) of this Agreement; and (iii) as to certain other matters, on certificates of responsible officers of the Company, public officials and others deemed by such counsel to be responsible.
(c) The Company shall have furnished to the Representatives:
(i) Underwriters an opinion, dated the opinion Closing Date, of the General Counsel▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, an Associate General Counsel or a Deputy Esq., General Counsel of the Company, or an outside counsel for the Company, dated the Closing Date, substantially to the effect that:
(Ai) the The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of DelawareOhio, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package Prospectus;
(ii) Fifth Third Bank and Final Prospectus Fifth Third Bank (Michigan) have been duly organized or incorporated and are validly existing as amended a bank or supplementedcorporation in good standing under the laws of its respective jurisdiction of organization or incorporation; and all of the issued shares of capital stock of each such entity have FTB SENIOR DEBT 2008 – UNDERWRITING AGREEMENT been duly and validly authorized and issued, are fully paid and non-assessable, and (except where for directors’ qualifying shares and except as otherwise set forth in the Prospectus) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims (such failure would not counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or its subsidiaries, provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates);
(iii) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would, individually or in the aggregate, have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(Biv) insofar as the statements contained The documents incorporated by reference in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) the Indenture has been duly authorized, executed and delivered any further amendment or supplement thereto made by the CompanyCompany prior to the Time of Delivery (other than the financial statements and related schedules therein, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject as to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether which such enforceability is considered in a proceeding in equity or at lawcounsel need express no opinion); and the Securities have been duly authorized and, when executed and authenticated in accordance they became effective or were filed with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433Commission, as the case may be, complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and he has no reason to believe that any of such documents, when such documents became effective or were so filed, as the case may be, contained, in the case of a registration statement which became effective under the Securities Act, 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, in the case of other documents which were filed under the Securities Act or the Exchange Act with the Commission, 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 when such documents were so filed, not misleading;
(v) The Company has all power and authority (corporate and other) necessary to execute and deliver the Notes, the Indenture and this Agreement and to perform its obligations thereunder; the execution, delivery and performance by the Company of its obligations under the Notes, the Indenture and this Agreement and compliance with the provisions hereof and thereof by the Company will not FTB SENIOR DEBT 2008 – UNDERWRITING AGREEMENT constitute a breach of or default under the Second Amended Articles of Incorporation or Code of Regulations of the Company or any of its subsidiaries, or any material agreement, indenture or other instrument to which the Company or any of its subsidiaries is a party, or, to the best knowledge of the Company’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 Company or any of its subsidiaries or any property of the Company or any of its subsidiaries, which breach or default would be reasonably likely to have a material adverse effect on the financial condition, stockholders’ equity or results of operations of the Company and it subsidiaries, taken as a whole, or on the ability of the Company to perform its obligations hereunder or its obligations under the Notes, the Indenture and this Agreement; and
(vi) To the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statementconsent, as amendedapproval, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval order, registration or other action by, and no notice to, consent of, order of, qualification of or filing with, with any U.S. federal court or California governmental agency or Delaware governmental authority or agency body is required for the issue and sale of the Notes or the consummation by the Company of the transactions contemplated hereinby the Underwriting Agreement, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the blue sky state securities or Blue Sky laws of any jurisdiction in connection with the purchase and distribution of the Securities and Notes by the Underwriters. In rendering such other approvals (specified in such opinion) opinion or opinions, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ may rely as have been obtained; and
(G) none to matters involving the application of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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 orState of New York upon the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP delivered pursuant to Section 6(d).
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date with respect to such counsel’s knowledgematters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Trustee upon the certificate of such entity, (ii) as to matters involving the terms application of any Material Agreementslaws of the State of Ohio upon the opinions of ▇▇▇▇▇▇▇ Head & ▇▇▇▇▇▇▇ LLP and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, or any material decree or regulation known Esq. delivered pursuant to Sections 6(b) and (c), respectively; and (iii) as to certain other matters on certificates of responsible officers of the Company, public officials and others deemed by such counsel to be applicable responsible.
(e) On the date of the Prospectus at a time prior to the Company execution of this Agreement, at 9:30 A.M., New York City time, on the effective date of any U.S. federal post effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at the Time of Delivery, Deloitte & Touche LLP shall have furnished to you a letter or California letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I hereto (the executed copy of the letter delivered prior to the execution of this Agreement is attached as Annex I(a) hereto and a form of letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery is attached as Annex I(b) hereto). FTB SENIOR DEBT 2008 – UNDERWRITING AGREEMENT
(f) (i) Neither the Company nor any of its Significant Subsidiaries shall have sustained since the date of the latest audited financial statements included or Delaware court,incorporated by reference in the Pricing Prospectus any 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, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its Significant Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its Significant Subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes being issued at such Time of Delivery on the terms and in the manner contemplated in the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the New York business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time, the Notes shall have been accorded a rating of not less than “A+” by Standard & Poor’s Ratings Service, not less than “Aa3” by ▇▇▇▇▇’▇ Investors Service, Inc. and not less than “AA-” by Fitch Ratings.
(i) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Execution Timethough made on, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date hereof and (including the filing of any document incorporated by reference thereinii) on, and as of though made on, the Closing Date, to the accuracy in all material respects of the statements of the Company Republic made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Final ProspectusPrior to the Closing Date, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus 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, or any notice that would prevent its use, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) of this Agreement; and any final term sheet contemplated by Section 4(a) hereof, and any other material required to be filed by the Republic 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.
(b) The Company Head or Acting Head of the Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyRepresentatives such counsel’s written opinion, dated the Closing Date, substantially to the effect that:
(i) The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Republic and the Agreements constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(iv) The Securities have been duly authorized, executed, issued and delivered by the Republic in accordance with the Indenture, and, assuming due authentication and delivery by the Trustee, the Securities constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms entitled to the benefits provided by the Indenture;
(v) The obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Securities) of the Republic that will rank equal in right of payment with all other present and future unsecured and unsubordinated External Indebtedness of the Republic;
(vi) There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of any of the Agreements, the issue of the Securities as contemplated herein and in the Prospectus, or the performance or observance by the Republic of any of the terms of the Agreements or the Securities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the due execution, delivery and performance by the Republic of any of the Agreements or the Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for (I) Law 533 of November 11, 1999, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999, (III) the relevant portions of Law 80 of October 28, 1993, (IV) Law 781 of December 20, 2002, (V) Law 1366 of December 21, 2009, (VI) Law 1624 of April 29, 2013, (VII) Decree No. 2681 of December 29, 1993, (VIII) Resolution No. [—] dated [—] of the Ministerio de Hacienda y Crédito Público, (IX) CONPES Document No. [—] DNP:SC-DEE MINHACIENDA, dated [—], (X) Authorization by Act of the Comisión Interparlamentaria de Crédito Público adopted in its meeting held on [—] and (XI) External Resolution No. [—] dated [—] of the Board of Governors of the Central Bank of Colombia (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not necessary that any Agreement or the Securities be registered, recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General or Acting Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. [—] dated [—] issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) the publication of the Agreements in the Sistema Electrónico de Contratación Pública-SECOP of the Republic, to satisfy the requirement for such publications, (B) notice to the Banco de la República concerning the external indebtedness represented by the Securities and (C) in accordance with External Resolution No. [—] of [—], issued by the Board of Governors of the Central Bank of Colombia, the delivery of written information from the Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público to the Board of Governors of the Central Bank of Colombia regarding the proposed issuance of the Securities, each of which shall be effected on or prior to the Closing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that the Securities are held by a non-resident and non-domiciliary of the Republic;
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process, subject to the terms, conditions, limitations or exceptions under (i) Articles 192, 195, 298 and 299 of Law 1437 of 2011 (Código de Procedimiento Administrativo y de lo Contencioso Administrativo); and (ii) Articles 684 and 513 of the Colombian Civil Procedure Code (Código de Procedimiento Civil), (which will be gradually superseded by Articles 593, 594 and 595 et al subject to the entry into force of Law 1564 of 2012 (Código General del Proceso) pursuant to the terms of article 627, paragraph 6 thereof) and Article 19 of Decree 111 of January 15, 1996, pursuant to which the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Indenture and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 9.7(b) of the Indenture and Section 15(b) of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 9.7(b) of the Indenture and Section 15(b) of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Indenture and the Securities as provided in Section 15 hereof, Section 9.7(a) of the Indenture and Section 15(a) of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 9.7(b) of the Indenture and Section 15(b) of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur,” subject to the provisions of (i) Article 693 of the Colombian Civil Procedure Code (Código de Procedimiento Civil), which will be gradually superseded by article 605 (et al) subject to the entry into force of Law 1564 of 2012 (Código General del Proceso) pursuant to the terms of article 627, paragraph 6 thereof), which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic; and (ii) subject to compliance with the provisions of Article 694 and 695 of the Colombian Civil Procedure Code (Código de Procedimiento Civil), (which will be gradually superseded by articles 606 and 607, respectively, subject to the entry into force of Law 1564 of 2012 pursuant to the terms of article 627, paragraph 6 thereof). The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus, as amended or supplemented, and their filing with the Commission have been duly authorized by and on behalf of the Republic, and the Registration Statement, as amended, has been duly executed by and on behalf of the Republic, and the information in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, stated on the authority of public officials of the Republic has been stated in their official capacities thereunto duly authorized;
(xvii) The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Indenture, insofar as matters of Colombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Company has been duly incorporated and is validly existing as a corporation in good standing under Registration Statement, at the laws respective times each part became effective, contained an untrue statement of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on fact or omitted to state a material fact required to be stated therein or necessary to make the Company and its subsidiaries, taken as a wholestatements therein not misleading;
(B) insofar No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof 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 to make the statements contained therein, in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description light of the Global Notes” and the statements contained in the Base Prospectus circumstances under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenturewhich they were made, such statements present in all material respects an accurate summary of such provisions;not misleading; and
(C) the Indenture No information 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, come to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to attention that causes such counsel to be applicable believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in the Company Pricing Disclosure Package, as of the Applicable Time, contained any U.S. federal untrue statement of a material fact or California or Delaware court,omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. S
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Execution Timethough made on, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date hereof and (including the filing of any document incorporated by reference thereinii) on, and as of though made on, the Closing Date, to the accuracy in all material respects of the statements of the Company Republic made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Final ProspectusPrior to the Closing Date, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus 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, or any notice that would prevent its use, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) of this Agreement; and any final term sheet contemplated by Section 4(a) hereof, and any other material required to be filed by the Republic 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.
(b) The Company Head or Acting Head of the Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyRepresentatives such counsel’s written opinion, dated the Closing Date, substantially to the effect that:
(i) The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Republic and the Agreements constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(iv) The Securities have been duly authorized, executed, issued and delivered by the Republic in accordance with the Indenture, and, assuming due authentication and delivery by the Trustee, the Securities constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms entitled to the benefits provided by the Indenture;
(v) The obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Securities) of the Republic that will rank without any preference among themselves and equal in right of payment with all other present and future unsecured and unsubordinated External Indebtedness of the Republic;
(vi) There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of any of the Agreements, the issue of the Securities as contemplated herein and in the Prospectus, or the performance or observance by the Republic of any of the terms of the Agreements or the Securities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the due execution, delivery and performance by the Republic of any of the Agreements or the Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for (I) Article 16 (c) and (h) of Law 31 of 1992, (II) Law 533 of November 11, 1999, (III) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999, (IV) the relevant portions of Law 80 of October 28, 1993, (V) Law 781 of December 20, 2002, (VI) Law 1366 of December 21, 2009, (VII) Law 1624 of April 29, 2013, (VIII) Law 1771 of December 30, 2015, (IX) Decree No. 1068 of May 26, 2015, (X) Resolution No. 2275 dated August 1, 2017 of the Ministerio de Hacienda y Crédito Público; (XI) CONPES Document No. 3865 DNP, MINHACIENDA, dated July 14, 2016; (XII) Authorization by Act of the Comisión Interparlamentaria de Crédito Público adopted in its meeting held on June 15, 2016, and (XIII) Authorization by Act of the Comisión Interparlamentaria de Crédito Público adopted in its meetings held on June 14, 2017 and June 20, 2017; (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not necessary that any Agreement or the Securities be registered, recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General or Acting Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 2275 dated August 1, 2017, issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) the publication of the Underwriting Agreement in the Sistema Electrónico de Contratación Pública-SECOP of the Republic, to satisfy the requirement for such publications, (B) filing of information before the Colombian Central Bank (Banco de la República) of public external indebtedness report on Form No. 6 (Formulario 6), resulting from the issuance of the Securities under the Indenture each of which shall be effected on or prior to the Closing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that the Securities are held by a non-resident and non-domiciliary of the Republic;
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process, subject to the terms, conditions, limitations or exceptions under (i) Articles 192, 195, 298 and 299 of Law 1437 of 2011 (Código de Procedimiento Administrativo y de lo Contencioso Administrativo); and (ii) Articles 593, 594 and 595 et al of Law 1564 of 2012 (Código General del Proceso) which entered into force on January 1, 2016, pursuant to the terms of Acuerdo No. PSAA15-10392, of October 1, 2015, issued by the Colombian Council of the Judiciary (Consejo Superior de la Judicatura) and Article 19 of Decree 111 of January 15, 1996, pursuant to which the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Indenture and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Indenture and the Securities as provided in Section 15 hereof, Section 9.7(a) of the Indenture and Section 16(a) of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur,” subject to the provisions of (i) Article 605 (et al) of Law 1564 of 2012 (Código General del Proceso) which entered into force on January 1, 2016, pursuant to the terms of Acuerdo No. PSAA15-10392, of October 1, 2015, issued by the Colombian Council of the Judiciary (Consejo Superior de la Judicatura) and which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic; and (ii) subject to compliance with the provisions of Articles 606 and 607 of Law 1564 of 2012 (Código General del Proceso) which entered into force on January 1, 2016, pursuant to the terms of Acuerdo No. PSAA15-10392, of October 1, 2015, issued by the Colombian Council of the Judiciary (Consejo Superior de la Judicatura). The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic other than those governing judicial procedures, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly legalized copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus, as amended or supplemented, and their filing with the Commission have been duly authorized by and on behalf of the Republic, and the Registration Statement, as amended, has been duly executed by and on behalf of the Republic, and the information in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, stated on the authority of public officials of the Republic has been stated in their official capacities thereunto duly authorized;
(xvii) The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Indenture, insofar as matters of Colombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Company has been duly incorporated and is validly existing as a corporation in good standing under Registration Statement, at the laws respective times each part became effective, contained an untrue statement of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on fact or omitted to state a material fact required to be stated therein or necessary to make the Company and its subsidiaries, taken as a wholestatements therein not misleading;
(B) insofar No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof 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 to make the statements contained therein, in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description light of the Global Notes” and the statements contained in the Base Prospectus circumstances under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenturewhich they were made, such statements present in all material respects an accurate summary of such provisions;not misleading; and
(C) the Indenture No information 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, come to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to attention that causes such counsel to be applicable believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in the Company Pricing Disclosure Package, as of the Applicable Time, contained any U.S. federal untrue statement of a material fact or California omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such counsel may state that he or Delaware court,she is not passing upon an
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Execution Timethough made on, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date hereof and (including the filing of any document incorporated by reference thereinii) on, and as of though made on, the Closing Date, to the accuracy in all material respects of the statements of the Company Republic made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Final ProspectusPrior to the Closing Date, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus 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, or any notice that would prevent its use, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened.; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) of this Agreement; and any final term sheet contemplated by Section 4(a) hereof, and any other material required to be filed by the Republic 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;
(b) The Company Head or Acting Head of the Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyRepresentatives such counsel’s written opinion, dated the Closing Date, substantially to the effect that:
(i) The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Republic and the Agreements constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(iv) The Securities have been duly authorized, executed, issued and delivered by the Republic in accordance with the Fiscal Agency Agreement, and, assuming due authentication and delivery by the Fiscal Agent, the Securities constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(v) The obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Securities) of the Republic that will rank equal in right of payment with all other present and future unsecured and unsubordinated External Indebtedness of the Republic;
(vi) There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of any of the Agreements, the issue of the Securities as contemplated herein and in the Prospectus, or the performance or observance by the Republic of any of the terms of the Agreements or the Securities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the due execution, delivery and performance by the Republic of any of the Agreements or the Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for (I) Law 533 of November 11, 1999, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999, (III) the relevant portions of Law 80 of October 28, 1993, (IV) Law 781 of December 20, 2002, (V) Decree No. 2681 of December 29, 1993, (VI) Resolution No. 2797 dated August 8, 2006 of the Ministerio de Hacienda y Crédito Público, (VII) CONPES Document No. 3317 MINHACIENDA, DNP:SC, dated November 29, 2004, (VIII) the Certificate dated December 7, 2005, issued by the Technical Secretariat of the Interparliamentary Commission of Public Credit, in accordance with article 7 of Decree 2757 of 2005 and (IX) External Resolution No. 8 dated November 19, 2004 of the Board of Governors of the Central Bank of Colombia (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not necessary that any Agreement or the Securities be registered, recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General of Public Credit and the National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 2797 dated August 8, 2006 issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) a summary of the Agreements in the Diario Unico de Contratación Pública of the Republic, to satisfy the requirement for such publications, (B) notice to the Banco de la República concerning the external indebtedness represented by the Securities and (C) in accordance with External Resolution No. 8 of November 19, 2004, issued by the Junta Directiva del Banco de la República, the delivery of written information from the Director General of Public Credit of the Ministerio de Hacienda y Crédito Público to the Junta Directiva del Banco de la República regarding the proposed issuance of the Securities, each of which shall be effected on or prior to the Closing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that, the Securities are held by a non-resident and non-domiciliary of the Republic.
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process; provided, that, except as provided under Article 177 of the Código Contencioso Administrativo of the Republic, which does not override Articles 684 or 513 of the Código de Procedimiento Civil and Article 19 of Decree 111 of January 15, 1996 of the Republic, the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Fiscal Agency Agreement and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Fiscal Agency Agreement and the Securities as provided in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 16 of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur”, subject to the provisions of Article 693 of the Código de Procedimiento Civil which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic and subject to compliance with the provisions of Article 694 of the Código de Procedimiento Civil. The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus, as amended or supplemented, and their filing with the Commission have been duly authorized by and on behalf of the Republic, and the Registration Statement, as amended, has been duly executed by and on behalf of the Republic, and the information in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, stated on the authority of public officials of the Republic has been stated in their official capacities thereunto duly authorized;
(xvii) The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Fiscal Agency Agreement, insofar as matters of Colombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Company has been duly incorporated and is validly existing as a corporation in good standing under Registration Statement, at the laws respective times each part became effective, contained an untrue statement of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on fact or omitted to state a material fact required to be stated therein or necessary to make the Company and its subsidiaries, taken as a wholestatements therein not misleading;
(B) insofar No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof 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 to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(C) No information has come to such counsel’s attention that causes such counsel to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in 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 the circumstances under which they were made, not misleading. Such counsel may state that he or she is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Disclosure PackageProspectus (except to the extent expressly set forth in (xvii) above) and that such counsel makes no representation that such counsel has independently verified the accuracy, the statements contained in the Final Prospectus under the caption “Description completeness and fairness of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Actexcept as aforesaid), and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, to such counsel’s knowledgeopinions referred to in this subsection (b) are limited to matters of Colombian law and, insofar as the terms opinion required by this subsection (b) is affected by matters of any Material AgreementsUnited States or New York law, or any material decree or regulation known to such counsel to it may be applicable to given in reliance upon the Company opinion required by subsection (c) of any U.S. federal or California or Delaware court,this Section 7 and that, insofar as the foregoing opi
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Execution Timethough made on, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date hereof and (including the filing of any document incorporated by reference thereinii) on, and as of though made on, the Closing Date, to the accuracy in all material respects of the statements of the Company Republic made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Final ProspectusPrior to the Closing Date, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus 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, or any notice that would prevent its use, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) of this Agreement; and any final term sheet contemplated by Section 4(a) hereof, and any other material required to be filed by the Republic 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.
(b) The Company Head or Acting Head of the Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyRepresentatives such counsel’s written opinion, dated the Closing Date, substantially to the effect that:
(i) The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Republic and the Agreements constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(iv) The Securities have been duly authorized, executed, issued and delivered by the Republic in accordance with the Fiscal Agency Agreement, and, assuming due authentication and delivery by the Fiscal Agent, the Securities constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(v) The obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Securities) of the Republic that will rank equal in right of payment with all other present and future unsecured and unsubordinated External Indebtedness of the Republic;
(vi) There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of any of the Agreements, the issue of the Securities as contemplated herein and in the Prospectus, or the performance or observance by the Republic of any of the terms of the Agreements or the Securities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the due execution, delivery and performance by the Republic of any of the Agreements or the Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for (I) Law 533 of November 11, 1999, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999, (III) the relevant portions of Law 80 of October 28, 1993, (IV) Law 781 of December 20, 2002, (V) Law 1366 of December 21, 2009, (VI) Law 1624 of April 29, 2013, (VII) Decree No. 2681 of December 29, 1993, (VIII) Resolution No. 3080 dated September 19, 2013 of the Ministerio de Hacienda y Crédito Público, (IX) CONPES Document No. 3734 DNP:SC-DEE MINHACIENDA, dated November 23, 2012, (X) Authorization by Act of the Comisión Interparlamentaria de Crédito Público adopted in its meetings held on January 17, 2013 and June 19, 2013, (XI) External Resolution No. 13 dated November 23, 2012 and (XII) External Resolution No. 5 dated June 28, 2013 of the Board of Governors of the Central Bank of Colombia (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not necessary that any Agreement or the Securities be registered, recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 3080 dated September 19, 2013 issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) the publication of the Agreements in the Sistema Electrónico de Contratación Pública-SECOP of the Republic, to satisfy the requirement for such publications, (B) notice to the Banco de la República concerning the external indebtedness represented by the Securities and (C) in accordance with External Resolutions No. 13 of November 23, 2012 and No. 5 of June 28, 2013, issued by the Board of Governors of the Central Bank of Colombia, the delivery of written information from the Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público to the Board of Governors of the Central Bank of Colombia regarding the proposed issuance of the Securities, each of which shall be effected on or prior to the Closing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that the Securities are held by a non-resident and non-domiciliary of the Republic;
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process, subject to the terms, conditions, limitations or exceptions under (i) Article 177 of the Colombian Administrative Code (Código Contencioso Administrativo) applicable to administrative or judicial proceedings initiated before July 2, 2012; (ii) Articles 192, 195, 298 and 299 of Law 1437 of 2011 (Código de Procedimiento Administrativo y de lo Contencioso Administrativo) applicable to administrative or judicial proceedings initiated on or after July 2, 2012; and (iii) Articles 684 and 513 of the Colombian Civil Procedure Code (Código de Procedimiento Civil), (which will be abrogated by Articles 593, 594 and 595 et al subject to the entry into force of Law 1564 of 2012 (Código General del Proceso) pursuant to the terms of article 627, paragraph 6 thereof) and Article 19 of Decree 111 of January 15, 1996, pursuant to which the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Fiscal Agency Agreement and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Fiscal Agency Agreement and the Securities as provided in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 16 of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur,” subject to the provisions of (i) Article 693 of the Colombian Civil Procedure Code (Código de Procedimiento Civil), which will be abrogated by article 605 subject to the entry into force of Law 1564 of 2012 (Código General del Proceso) pursuant to the terms of article 627, paragraph 6 thereof), which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic; and (ii) subject to compliance with the provisions of Article 694 and 695 of the Colombian Civil Procedure Code (Código de Procedimiento Civil), (which will be abrogated by articles 606 and 607, respectively, subject to the entry into force of Law 1564 of 2012 (Código General del Proceso) pursuant to the terms of article 627, paragraph 6 thereof). The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus, as amended or supplemented, and their filing with the Commission have been duly authorized by and on behalf of the Republic, and the Registration Statement, as amended, has been duly executed by and on behalf of the Republic, and the information in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, stated on the authority of public officials of the Republic has been stated in their official capacities thereunto duly authorized;
(xvii) The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Fiscal Agency Agreement, insofar as matters of Colombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Company has been duly incorporated and is validly existing as a corporation in good standing under Registration Statement, at the laws respective times each part became effective, contained an untrue statement of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on fact or omitted to state a material fact required to be stated therein or necessary to make the Company and its subsidiaries, taken as a wholestatements therein not misleading;
(B) insofar No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof 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 to make the statements contained therein, in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description light of the Global Notes” and the statements contained in the Base Prospectus circumstances under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenturewhich they were made, such statements present in all material respects an accurate summary of such provisions;not misleading; and
(C) 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to be applicable to the Company of any U.S. federal or California or Delaware court,No information has
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject subject, to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Timedate hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) Applicable Time and as of the Closing Date, to the accuracy in all material respects of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final ProspectusProspectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, or and any supplement theretoother material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed in with the manner and Commission within the applicable time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, Statement or any notice that would prevent its use, as amended from time to time, part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or threatenedthreatened 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 to your reasonable satisfaction.
(b) ▇▇▇▇▇▇▇ Head & ▇▇▇▇▇▇▇ LLP, counsel for the Company, shall have furnished to the Underwriters an opinion, dated the Closing Date to the effect that:
(i) The Company is validly existing as a corporation in good standing under the laws of the State of Ohio, and is duly registered as a bank holding company and qualified as a financial holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) This Agreement has been duly authorized, executed and delivered by the Company;
(iii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity and an implied covenant of good faith and fair dealing; and the Indenture has been duly qualified under the Trust Indenture Act;
(iv) The issuance, execution and delivery of the Securities have been duly and validly authorized by the Company and, when authenticated by the Trustee in the manner provided in the Indenture the Securities will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity and an implied covenant of good faith and fair dealing;
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “Description of Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects;
(vi) The Company is not, and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof will not, be an “investment company,” as such term is defined in the Investment Company Act;
(vii) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to each Time of Delivery (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 Securities Act and the Trust Indenture Act and the rules and regulations thereunder; although they do 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 subsection (v) of this Section 6(b), they have no reason to believe (i) that any part of the Registration Statement or any further amendment thereto made by the Company prior to each Time of Delivery (other than the financial statements and related schedules 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 each Time of Delivery, the Prospectus or any further amendment or supplement thereto made by the Company prior to each Time of Delivery (other than the financial statements and related schedules 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 they do 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 Basic Prospectus or the Prospectus which are not filed or incorporated by reference or described as required. In rendering such opinion or opinions, ▇▇▇▇▇▇▇ Head & ▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Trustee upon the certificate or certificates of such entity, (ii) as to matters involving the application of laws of the State of New York upon the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP delivered pursuant to Section 6(d); and (iii) as to certain other matters, on certificates of responsible officers of the Company, public officials and others deemed by such counsel to be responsible.
(c) The Company shall have furnished to the Representatives:
(i) Underwriters an opinion, dated the opinion Closing Date, of the General Counsel▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, an Associate General Counsel or a Deputy Esq., General Counsel of the Company, or an outside counsel for the Company, dated the Closing Date, substantially to the effect that:
(Ai) the The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of DelawareOhio, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package Prospectus;
(ii) Fifth Third Bank and Final Prospectus Fifth Third Bank (Michigan) have been duly organized or incorporated and are validly existing as amended a bank or supplementedcorporation in good standing under the laws of its respective jurisdiction of organization or incorporation; and all of the issued shares of capital stock of each such entity have been duly and validly authorized and issued, are fully paid and non-assessable, and (except where for directors’ qualifying shares and except as otherwise set forth in the Prospectus) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims (such failure counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or its subsidiaries, provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates);
(iii) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would not individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole, and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(Biv) insofar as the statements contained The documents incorporated by reference in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) the Indenture has been duly authorized, executed and delivered any further amendment or supplement thereto made by the CompanyCompany prior to each Time of Delivery (other than the financial statements and related schedules therein, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject as to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether which such enforceability is considered in a proceeding in equity or at lawcounsel need express no opinion); and the Securities have been duly authorized and, when executed and authenticated in accordance they became effective or were filed with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433Commission, as the case may be, complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and he has no reason to believe that any of such documents, when such documents became effective or were so filed, as the case may be, contained, in the case of a registration statement which became effective under the Securities Act, 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, in the case of other documents which were filed under the Securities Act or the Exchange Act with the Commission, 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 when such documents were so filed, not misleading;
(v) The Company has all power and authority (corporate and other) necessary to execute and deliver the Securities, the Indenture and this Agreement and to perform its obligations thereunder; the execution, delivery and performance by the Company of its obligations under the Securities, the Indenture and this Agreement and compliance with the provisions hereof and thereof by the Company will not constitute a breach of or default under the Second Amended Articles of Incorporation or Code of Regulations of the Company or any of its subsidiaries, or any material agreement, indenture or other instrument to which the Company or any of its subsidiaries is a party, or, to the best knowledge of the Company’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 Company or any of its subsidiaries or any property of the Company or any of its subsidiaries, which breach or default would be reasonably likely to have a material adverse effect on the financial condition, stockholders’ equity or results of operations of the Company and it subsidiaries, taken as a whole, or on the ability of the Company to perform its obligations hereunder or its obligations under the Securities, the Indenture and this Agreement; and
(vi) To the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statementconsent, as amendedapproval, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval order, registration or other action by, and no notice to, consent of, order of, qualification of or filing with, with any U.S. federal court or California governmental agency or Delaware governmental authority or agency body is required for the issue and sale of the Securities or the consummation by the Company of the transactions contemplated hereinby the Underwriting Agreement, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the blue sky state securities or Blue Sky laws of any jurisdiction in connection with the purchase and distribution of the Securities and by the Underwriters. In rendering such other approvals (specified in such opinion) opinion or opinions, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ may rely as have been obtained; and
(G) none to matters involving the application of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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 orState of New York upon the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP delivered pursuant to Section 6(d).
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such counsel’s knowledgematters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Trustee upon the certificate or certificates of such entity, (ii) as to matters involving the terms application of any Material Agreementslaws of the State of Ohio upon the opinions of ▇▇▇▇▇▇▇ Head & ▇▇▇▇▇▇▇ LLP and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, or any material decree or regulation known Esq. delivered pursuant to Sections 6(b) and (c), respectively; and (iii) as to certain other matters on certificates of responsible officers of the Company, public officials and others deemed by such counsel to be applicable responsible.
(e) On the date of the Prospectus at a time prior to the Company execution of this Agreement, at 9:30 A.M., New York City time, on the effective date of any U.S. federal post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at the Time of Delivery, Deloitte & Touche LLP shall have furnished to you a letter or California letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I hereto (the executed copy of the letter delivered prior to the execution of this Agreement is attached as Annex I(a) hereto and a form of letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery is attached as Annex I(b) hereto).
(i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included or Delaware courtincorporated by reference in the Pricing Prospectus any 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, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being issued at such Time of Delivery on the terms and in the manner contemplated in the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the New York business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time, the Securities shall have been accorded a rating of not less than “A” by Standard & Poor’s Ratings Service, not less than “A1” by ▇▇▇▇▇’▇ Investors Service, Inc. and not less than “A+” by Fitch Ratings.
(i) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and (ii) no such organization shall have publicly announc
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Execution Timethough made on, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date hereof and (including the filing of any document incorporated by reference thereinii) on, and as of though made on, the Closing Date, to the accuracy in all material respects of the statements of the Company Republic made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Final ProspectusPrior to the Closing Date, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus 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, or any notice that would prevent its use, as amended from time to time, or any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representative; and the Prospectus shall have been filed pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) of this Agreement.
(b) The Company Head or Acting Head of the Legal Affairs Group of the Dirección General de Crédito Público of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyRepresentative such counsel’s written opinion, dated the Closing Date, substantially to the effect that:
(Ai) the Company The Republic has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full corporate power and authority to own execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended part to be performed or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken as a wholeobserved;
(Bii) insofar as The execution, delivery and performance by the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description Republic of the Global Notes” Agreements and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenturehave been duly authorized by all necessary action on its part and by all necessary constitutional, such statements present in all material respects an accurate summary of such provisionslegislative, executive, administrative and other governmental action;
(Ciii) the Indenture has The Agreements have 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law); Republic 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 in accordance with the terms of this Agreement, will be Agreements constitute legal, valid and binding obligations of the Company Republic enforceable against the Company in accordance with their terms;
(iv) The Securities have been duly authorized, executed, issued and delivered by the Republic in accordance with the Fiscal Agency Agreement, and, assuming due authentication and delivery by the Fiscal Agent, the Securities constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(v) The obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Securities) of the Republic that will rank equal in right of payment with all other present and future unsecured and unsubordinated External Indebtedness of the Republic;
(vi) There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of any of the Agreements, the issue of the Securities as contemplated herein and in the Prospectus, or the performance or observance by the Republic of any of the terms of the Agreements or the Securities;
(subject to applicable bankruptcyvii) No consent, insolvencyapproval (including exchange control approval), fraudulent transferauthorization, reorganizationorder, arrangementregistration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the due execution, moratorium delivery and other similar laws relating to performance by the Republic of any of the Agreements or affecting the rights Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for (I) Law 533 of November 11, 1999, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999, (III) the relevant portions of Law 80 of October 28, 1993, (IV) Decree No. 2681 of December 29, 1993, (V) authorization by Acts of the Comisión Interparlamentaria de Crédito Público adopted in its meetings held on June 20, 2002 and remedies December 23, 2002, (VI) Resolution No. 055 dated January 20, 2003 and Resolution No. 1204 dated June 27, 2003 of creditors generally from time to time in effectthe Ministerio de Hacienda y Crédito Público, (VII) approval No. 3156 dated March 5, 2002, as amended by approval No. 3205 dated December 4, 2002 of the Consejo Nacional de Política Económica y Social (“CONPES”), (VIII) approval No. 3176 dated July 15, 2002 of the CONPES, (IX) approval No. 3209 dated December 19, 2002 of the CONPES, and subject (X) External Resolution No. 2 of June 7, 2002, External Resolution No. 6 of December 23, 2002 and External Resolution No. 3 of June 20, 2003, issued by the Board of Directors of the Central Bank (each of which shall be listed in such counsel’s written opinion and copies of which shall be furnished to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity counsel to the Underwriters on or at lawprior to the Closing Date);
(Dviii) To ensure the Registration Statement and any amendments thereto have become effective under the Act; any required filing legality, validity, enforceability, priority or admissibility in evidence of each of the Base ProspectusAgreements and the Securities in the Republic, it is not necessary that any Issuer Free Writing Prospectus, any Preliminary Prospectus Agreement or the Final ProspectusSecurities be registered, and recorded, published or filed with any supplements thereto, pursuant to Rule 424(b) court or Rule 433 has been made other authority in the manner and within the time period required by Rule 424(b) Republic or Rule 433be notarized or that any documentary, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, stamp or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted similar tax be paid on or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture Act and such as may be required under the blue sky laws in respect of any jurisdiction in connection with the purchase and distribution of the Securities and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of Agreements or the Securities, except for (A) the consummation issuance by the Director General of any other Public Credit of the transactions herein contemplated or Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 055 of January 20, 2003 and Resolution No. 1204 of June 27, 2003, issued by the fulfillment Ministerio de Hacienda y Crédito Público in the Diario Oficial of the terms hereof will conflict withRepublic and (y) a summary of the Agreements in the Diario Unico de Contratación Pública of the Republic, result to satisfy the requirement for such publications, (B) notice of the external indebtedness represented by the Securities to the Banco de la República and (C) in a breach ofaccordance with External Resolution No. 2 of June 7, or constitute a default under2002, External Resolution No. 6 of December 23, 2002 and External Resolution No. 3 of June 20, 2003, issued by the Junta Directiva del Banco de la República, the charter or by-laws delivery of written information from the Director General of Public Credit of the Company or, Ministerio de Hacienda y Crédito Público to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to be applicable to the Company of any U.S. federal or California or Delaware court,the
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company and the Guarantor contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date, to the accuracy in all material respects of the statements of the Company and the Guarantor made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company and the Guarantor of its their obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in with the manner and Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; the Final Term Sheet contemplated by Section 5(a) hereof and any other material required to be filed by the Company and the Guarantor pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, Statement or any notice that would prevent its use, as amended from time to time, part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or threatened.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 to the Representatives’ reasonable satisfaction;
(b) The Company Underwriters shall have furnished to received on the Representatives:
(i) the Closing Date an opinion and negative assurance letter of the General Counsel▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyGuarantor, dated the Closing Date, substantially in form and substance reasonably satisfactory to the effect that:Underwriters. Such opinion and negative assurance letter shall be rendered to the Underwriters at the request of the Guarantor and shall so state therein. The Guarantor intends and agrees that ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP is authorized to rely upon all of the representations made by the Guarantor in this Agreement in connection with rendering its opinions pursuant to this subsection;
(Ac) The Underwriters shall have received on the Closing Date an opinion of ▇▇▇▇▇▇ ▇▇▇ LLP, outside counsel for the Company has been duly incorporated as to Irish law, dated the Closing Date, in form and is validly existing as a corporation in good standing under substance reasonably satisfactory to the laws Underwriters. Such opinion shall be rendered to the Underwriters at the request of the State Company and shall so state therein. The Company intends and agrees that ▇▇▇▇▇▇ ▇▇▇ is authorized to rely upon all of Delawarethe representations made by the Company in this Agreement in connection with rendering its opinions pursuant to this subsection;
(d) The Underwriters shall have received on the Closing Date an opinion of internal counsel to the Guarantor in form and substance reasonably satisfactory to the Underwriters;
(e) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, an opinion and negative assurance letter, dated the Closing Date and addressed to the Representatives, with full corporate power respect to the issuance and authority sale of the Securities, the Indenture, the Registration Statement, the Pricing Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Guarantor shall have furnished to own its properties such counsel such documents as they request for the purpose of enabling them to pass upon such matters;
(f) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and conduct its business as described also at the Closing Date, Deloitte & Touche LLP shall furnish to the Underwriters in form and substance reasonably satisfactory to the Underwriters and their counsel, a letter containing information of the type ordinarily included in accountants “comfort letters” to underwriters with respect to the financial statements and certain financial information with respect to the Guarantor included or incorporated by reference in the Disclosure Package Pricing Prospectus and Final the Prospectus dated as amended or supplementedof the date hereof and as of the Closing Date, except where such failure would respectively;
(g) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any change, or any development involving a material adverse effect on prospective change, in the Company condition, financial or otherwise, or in the earnings, business or operations of the Guarantor and its subsidiaries, taken as a whole, from that set forth in the Pricing Prospectus that, in judgment of the Representatives, is so material and adverse as to make it impracticable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Prospectus and this Agreement;
(Bh) insofar as On or after the statements contained Applicable Time, other than any downgrade, notice of any intended or potential downgrading of, or any review for a possible change consisting of, a “one notch” downgrade by either of S&P Global Ratings (“S&P”) and/or ▇▇▇▇▇’▇ Investor Services (“▇▇▇▇▇’▇”) in (x) the rating accorded the Company, the Guarantor or any of the securities of the Guarantor or any of its subsidiaries or (y) the rating outlook for the Company or the Guarantor, there shall not have occurred any downgrading, or notice of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change by S&P or ▇▇▇▇▇’▇ in (i) the rating accorded the Company, the Guarantor or any of the securities of the Guarantor or any of its subsidiaries or (ii) the rating outlook for the Company or the Guarantor;
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Disclosure Package, Guarantor’s securities on the statements contained New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the Final Prospectus under United States or with respect to the caption “Description Clearstream or Euroclear systems in Europe; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or the occurrence of any other calamity or crisis involving the United States; or (v) any change in national or international financial, political or economic conditions, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Global Notes” and Representatives makes it impracticable or inadvisable to proceed with the statements contained in public offering, sale or the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions delivery of the Securities or on the Indenture, such statements present terms and in all material respects an accurate summary of such provisionsthe manner contemplated in the Prospectus;
(Cj) 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 obligation enforceable against the The Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law); and the Securities Guarantor shall have been duly authorized and, when executed and authenticated in accordance complied with the provisions of Section 5(c) hereof with respect to the Indenture and delivered to and paid for by furnishing of prospectuses on the Underwriters in accordance with Business Day next succeeding the terms date of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(Gk) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or the fulfillment of the terms hereof will conflict with, result in a breach of, or constitute a default under, the charter or by-laws Each of the Company orand the Guarantor shall have furnished or caused to be furnished to the Representatives at the Closing Date a certificate, dated the Closing Date and signed by an officer of the Company and the Guarantor, on behalf of the Company and the Guarantor, reasonably satisfactory to the Representatives as to the accuracy of the representations and warranties of the Company and the Guarantor herein at and as of such Closing Date, as to the performance by the Company and the Guarantor of all of its obligations hereunder to be performed at or prior to such counsel’s knowledgeClosing Date, and as to the matters set forth in subsections (a), (f) and (g) of this Section. If any of the conditions specified in this Section 8 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the terms Closing Date by the Representatives. Notice of any Material Agreements, or any material decree or regulation known to such counsel to cancelation shall be applicable given to the Company of any U.S. federal or California the Guarantor in writing or Delaware court,by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the several Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein and the representations and warranties of Dow contained in the letter, dated as of the date hereof (“Side Letter”), of Dow, addressed to you, in each case, as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) Time and as of the Closing Date, to the accuracy in all material respects of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, or and any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus 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, Statement or any notice that would prevent objecting to its use, as amended from time to time, use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇▇ & Sterling LLP, external counsel of the Company to have furnished to the Representatives:
(i) the Representatives their opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the Company, dated the Closing DateDate and addressed to the Underwriters, substantially to the effect that:
(i) assuming that the Company and Dow have duly authorized, executed and delivered the Indenture and assuming due authorization, execution, and delivery by the Trustee, the Indenture is a legal, valid and binding obligation of the Company and Dow, enforceable against the Company and Dow in accordance with its terms and has been duly qualified under the Trust Indenture Act;
(ii) assuming that the Company has duly authorized and executed the Securities and, when authenticated by the Trustee in accordance with the Indenture and delivered and paid for as provided in the Underwriting Agreement, the Securities will be the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture;
(iii) assuming that the Company has duly authorized and executed the Paying Agency Agreement and assuming due authorization, execution and delivery by the Paying Agent, the Paying Agency Agreement is a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms;
(iv) no authorization, approval or other action by, and no notice to or filing with, any United States federal or New York governmental authority or regulatory body, is required for the due execution, delivery or performance by (1) the Company of the Underwriting Agreement, the Indenture, the Paying Agency Agreement and the issuance and sale of the Securities and (2) Dow of the Indenture, except as may be required under the Act and the Trust Indenture Act, in connection with the offer and sale of the Securities by the Company;
(v) the execution and delivery by the Company of the Underwriting Agreement, the Indenture and the Paying Agency Agreement, the issuance of the Securities and the execution and delivery by Dow of the Indenture do not, and the performance by the Company and Dow of their respective obligations thereunder and the consummation of the transactions contemplated thereby will not result in a violation of the law of the State of New York (including the rules or regulations promulgated thereunder or pursuant thereto), that a New York lawyer exercising customary professional diligence would reasonably be expected to recognize as being applicable to the Company, Dow, the Underwriting Agreement, the Indenture, the Paying Agency Agreement or the transactions governed thereby; In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York, the corporate law of the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Company shall have requested and caused ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Managing Counsel and Director, Office of the Corporate Secretary of the Company to have furnished to the Representatives his opinion dated the Closing Date and addressed to the Representatives, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full corporate power and authority to own own, lease, and/or operate its properties and conduct its business as described in the Disclosure Package and the Final Prospectus Prospectus, and is duly qualified to do business as amended a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or supplementedleases material properties or conducts material business, except where such the failure to so qualify would not have a material adverse effect on the Company and its subsidiaries, taken as a wholeMaterial Adverse Effect;
(Bii) insofar the Company has been duly incorporated and is validly existing as a corporation in good standing under the statements contained laws of the State of Delaware with full corporate power and authority to own, lease, and/or operate its properties and conduct its business as described in the Disclosure PackagePackage and the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the statements contained laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business, except where the failure to so qualify would not have a Material Adverse Effect;
(iii) Dow is validly existing as a corporation in good standing under the laws of the State of Delaware;
(iv) each Significant Subsidiary 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, lease, and/or operate its properties and conduct its business as described in the Disclosure Package and the Final Prospectus Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the caption “Description laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business, except where the Global Notes” and the statements contained in the Base Prospectus under the caption “Description failure to so qualify would not have a Material Adverse Effect;
(v) each of the Debt Securities” purport to describe specific provisions of the Securities or this Agreement, the Indenture, such statements present in all material respects an accurate summary of such provisionsthe Paying Agency Agreement and the Securities have been duly authorized, executed and delivered by the Company;
(Cvi) each of the Indenture has been duly authorized, executed and delivered by ▇▇▇;
(vii) except as otherwise set forth in the Company, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law); Disclosure Package and the Securities Final Prospectus, all the outstanding shares of capital stock of each Significant Subsidiary have been duly authorized and validly issued and are fully paid and non-assessable and, when executed except as otherwise set forth in the Disclosure Package and authenticated in accordance with the provisions Final Prospectus, and except for shares necessary to qualify directors or to maintain any minimum number of the Indenture and delivered to and paid for shareholders required by law, all outstanding shares of capital stock of each Significant Subsidiary are owned by the Underwriters Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(viii) the Company’s authorized equity capitalization is as set forth in accordance the Disclosure Package and the Final Prospectus (except for subsequent issuances pursuant to employee benefit plans or pursuant to the exercise of convertible securities or options and except for repurchases in connection with open market or repurchase plans or redemptions of shares of preferred stock);
(ix) to the terms knowledge of such counsel, except as disclosed in, or contemplated in, the Disclosure Package and the Final Prospectus, 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, that (i) would reasonably be expected to have a material adverse effect on the performance of this Agreement, the Indenture, the Paying Agency Agreement, or the consummation of any of the transactions contemplated hereby or thereby or (ii) would reasonably be expected to have a Material Adverse Effect;
(x) none of the execution and delivery of this Agreement, the Indenture, the Paying Agency Agreement, the issuance and sale of the Securities, nor the consummation of any other of the transactions herein or therein contemplated nor the fulfillment of the terms hereof or thereof will be legalconflict with, valid and binding obligations result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company enforceable against or its subsidiaries pursuant to, (i) the charter or by-laws of the Company or each 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 to which the Company or its subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, other than of the State of New York, judgment, order or decree applicable to the Company or its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or its subsidiaries or any of their properties, which conflict, breach, violation, lien, charge or encumbrance, in accordance the case of (ii) and (iii), would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or affect the validity of the Securities or the legal authority of the Company to comply with their terms (subject to applicable bankruptcythe Securities, insolvencythe Indenture, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to the Paying Agency Agreement or affecting the rights and remedies of creditors generally from time to time this Agreement in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law)any material respect;
(Dxi) neither the Company nor Dow 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;
(xii) the Registration Statement and Statement, including any amendments thereto have become Rule 462(b) Registration Statement, became effective under the Act; Act and any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433424(b);on the Closing Date, as the case may be; to Commission’s website did not indicate the best knowledge existence of such counsel, no a stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(Exiii) this Agreement has been duly authorizedthe Registration Statement and the Final Prospectus (other than the financial statements and other financial and statistical information contained therein, executed and delivered by as to which such counsel need express no opinion) comply as to form in all material respects with the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation applicable requirements of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder;
(xiv) the documents incorporated by reference in the Disclosure Package and the Final Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the applicable requirements of the Act or the Exchange Act and the rules and regulations of the Commission thereunder, and nothing has come to his attention that caused him to believe that any of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be required stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(xv) the statements in the Disclosure Package and the Final Prospectus under the blue sky captions “Description of the Notes,” “Description of Debt Securities of The Dow Chemical Company” and “Description of Guarantees of Debt Securities of The Dow Chemical Company,” in each case, insofar as such statements constitute summaries of documents referred to therein, fairly summarize in all material respects the documents referred to therein; and
(xvi) the statements in the Disclosure Package and the Final Prospectus under the caption “Material United States Federal Tax Consequences,” insofar as such statements constitute summaries of legal matters referred to therein and subject to the limitations set forth therein, fairly summarize in all material respects the legal matters referred to therein. In addition, such counsel shall state that no facts came to such counsel’s attention that caused such counsel to believe that (i) the Registration Statement (other than the financial statements and other financial or statistical data contained therein or omitted therefrom and the Trustee’s Statement of Eligibility (Form T-1), as to which such counsel has not been requested to comment), as of the 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 Disclosure Package (other than the financial statements and other financial or statistical data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), at the Execution 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 Final Prospectus (other than the financial statements and other financial or statistical data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date and as of 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. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction in connection with other than the purchase and distribution State of Michigan, the corporate law of the Securities State of Delaware or the federal laws of the United States, to the extent he deems proper and such other approvals (specified in such opinion, upon the opinion of other counsel of good standing whom he believes to be reliable and who are satisfactory to counsel for the Underwriters and (B) as have been obtained; andto matters of fact, to the extent he deems proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (c) shall also include any supplements thereto at the Closing Date.
(Gd) none of The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the issue Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Underwriters, with respect to the issuance and sale of the Securities, the consummation of any other of the transactions herein contemplated or the fulfillment of the terms hereof will conflict with, result in a breach of, or constitute a default underIndenture, the charter or by-laws of 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 or, to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to be applicable pass upon such matters.
(e) The Company shall have furnished to the Company Representatives a certificate of any U.S. federal the Company, signed by the Chairman of the Board, the President, the Chief Financial Officer or California or Delaware court,the Treasurer of the Company, dated the Closing Date, to the effect that the signer of such certificate has caref
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Execution Timethough made on, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date hereof and (including the filing of any document incorporated by reference thereinii) on, and as of though made on, the Closing Date, to the accuracy in all material respects of the statements of the Company Republic made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Final ProspectusPrior to the Closing Date, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus 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, or any notice that would prevent its use, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) of this Agreement; and any final term sheet contemplated by Section 4(a) hereof, and any other material required to be filed by the Republic 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.
(b) The Company Head or Acting Head of the Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyRepresentatives such counsel’s written opinion, dated the Closing Date, substantially to the effect that:
(i) The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Republic and the Agreements constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(iv) The Securities have been duly authorized, executed, issued and delivered by the Republic in accordance with the Indenture, and, assuming due authentication and delivery by the Trustee, the Securities constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms entitled to the benefits provided by the Indenture;
(v) The obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Securities) of the Republic that will rank without any preference among themselves and equal in right of payment with all other present and future unsecured and unsubordinated External Indebtedness of the Republic;
(vi) There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of any of the Agreements, the issue of the Securities as contemplated herein and in the Prospectus, or the performance or observance by the Republic of any of the terms of the Agreements or the Securities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the due execution, delivery and performance by the Republic of any of the Agreements or the Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for, (I) the relevant portions of Law 80 of October 28, 1993, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999 (III) Law 533 of November 11, 1999, (IV) Law 781 of December 20, 2002, (V) Law 1366 of December 21, 2009, (VI) Law 1624 of April 29, 2013, (VII) Law 1771 of December 30, 2015, (VIII) Law 2073 of December 31, 2020, (IX) Decree No. 1068 of May 26, 2015, (X) CONPES Document No. [•] DNP, MINHACIENDA, dated [•]; (XI) evidence of publication of this Agreement in the Sistema Eléctronico de Contratación Pública SECOP of the Republic, (XII) Authorization by Act of the Comisión Interparlamentaria de Crédito Público adopted in its meetings held on [•], and (XIII) Resolution No. [•] dated [•] of the Ministerio de Hacienda y Crédito Público (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not necessary that any Agreement or the Securities be registered, recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General or Acting Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. [•] dated [•] issued by Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) the publication of this Agreement in the Sistema Electrónico de Contratación Pública-SECOP of the Republic, to satisfy the requirement for such publications, and (B) filing of information before the Colombian Central Bank (Banco de la República) of public external indebtedness report on Form No. 6 (Formulario 6), resulting from the issuance of the Securities under the Indenture each of which shall be effected on or prior to the Closing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that the Securities are held by a non-resident and non-domiciliary of the Republic;
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process, subject to the terms, conditions, limitations or exceptions under (i) Articles 192, 195, 298 and 299 of Law 1437 of 2011 (Código de Procedimiento Administrativo y de lo Contencioso Administrativo); and (ii) Articles 593, 594 and 595 et al of Law 1564 of 2012 (Código General del Proceso); and Article 19 of Decree 111 of January 15, 1996, pursuant to which the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Indenture and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Indenture and the Securities as provided in Section 15 hereof, Section 9.7(a) of the Indenture and Section 16(a) of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur,” subject to the provisions of (i) Article 605 (et al) of Law 1564 of 2012 (Código General del Proceso), which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic; and (ii) subject to compliance with the provisions of Articles 606 and 607 of Law 1564 of 2012 (Código General del Proceso). The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic other than those governing judicial procedures, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly legalized copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus, as amended or supplemented, and their filing with the Commission have been duly authorized by and on behalf of the Republic, and the Registration Statement, as amended, has been duly executed by and on behalf of the Republic, and the information in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, stated on the authority of public officials of the Republic has been stated in their official capacities thereunto duly authorized;
(xvii) The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Indenture, insofar as matters of Colombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Company has been duly incorporated and is validly existing as a corporation in good standing under Registration Statement, at the laws respective times each part became effective, contained an untrue statement of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on fact or omitted to state a material fact required to be stated therein or necessary to make the Company and its subsidiaries, taken as a wholestatements therein not misleading;
(B) insofar No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof 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 to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(C) No information has come to such counsel’s attention that causes such counsel to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in 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 the circumstances under which they were made, not misleading. Such counsel may state that he or she is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Disclosure PackageProspectus (except to the extent expressly set forth in (xvii) above) and that such counsel makes no representation that such counsel has independently verified the accuracy, the statements contained in the Final Prospectus under the caption “Description completeness and fairness of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Actexcept as aforesaid), and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, to such counsel’s knowledgeopinions referred to in this subsection (b) are limited to matters of Colombian law and, insofar as the terms opinion required by this subsection (b) is affected by matters of any Material AgreementsUnited States or New York law, or any material decree or regulation known to such counsel to it may be applicable to given in reliance upon the Company opinion required by subsection (c) of any U.S. federal or California or Delaware court,this Section 7 and that, insofar as the
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the several Underwriters to purchase the Securities under this Agreement shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained and the Principal Shareholder herein as of the Execution Time, set forth as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) hereof and as of the each Closing Date, to the accuracy in all material respects of the statements of the Company Company's officers made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder hereunder, and to the following additional conditions, unless waived in writing by the Representatives:
(a) The Final Prospectus, or any supplement thereto, Registration Statement shall have been filed in declared effective by the manner and within Commission not later than 5:30 p.m., Washington, D.C. time, on the day prior to the date of this Agreement, or such later time period required under Rule 424(b), and any Issuer Free Writing Prospectus as shall have been filed in consented to by the manner and within the time period Representatives; all filings required by Rule 433Rules 424(b) and 430A under the Act shall have been timely made; and no stop order suspending the effectiveness of the Registration Statement shall have been issued by the Commission or any state securities commission nor, to the knowledge of the Company or the Principal Shareholder, shall any proceedings for that purpose have been initiated or threatened; and any request of the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or any notice that would prevent its use, as amended from time to timeotherwise, shall have been issued and no proceedings for that purpose shall have been instituted or threatenedcomplied with to the satisfaction of the Representatives.
(b) The Company shall have furnished to Since the Representativesdates as of which information is given in the Registration Statement:
(i) there shall not have occurred any change or development involving, or which could be expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business; and
(ii) the Company shall not have sustained any material loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree, the effect of which on the Company, in any such case described in clause (i) or (ii) above, is in the opinion of the General Counsel, an Associate General Counsel Representatives so material and adverse as to make it impracticable or a Deputy General Counsel inadvisable to proceed with the public offering or the delivery of the CompanyShares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(c) The Representatives shall not have advised the Company that the Registration Statement or the Prospectus contains an untrue statement of fact that, in the opinion of the Representatives or an outside counsel for the CompanyUnderwriters, is material, or omits to state a fact that, in the opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(d) The Representatives shall have received an opinion of Jone▇, ▇▇y, Reav▇▇ & ▇ogu▇, ▇▇unsel for the Company addressed to the Representatives, as the representatives of the Underwriters, and dated the First Closing Date or the Second Closing Date, substantially as the case may be, to the effect that:
(Ai) The Company has been duly organized and is validly existing as a corporation and in good standing in its jurisdiction of incorporation, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; the Company is not registered and qualified to do business as a foreign corporation under the laws of any jurisdiction;
(ii) The authorized capital stock of the Company consists of 30,000,000 shares of Common Stock, no par value per share, and 5,000,000 shares of Preferred Stock, par value $0.01 per share, and all such stock conforms as to legal matters to the descriptions thereof in the "Description of Capital Stock" in the Prospectus and the Registration Statement;
(iii) The issued and outstanding shares of capital stock of the Company immediately prior to the issuance and sale of the Shares to be sold by the Company hereunder have been duly authorized and validly issued, are fully paid and nonassessable, and there are no statutory preemptive rights to subscribe for or purchase any shares of capital stock of the Company;
(iv) Except for the Subsidiaries, the Company has no subsidiaries, and the Company does not own any equity interest in or control, directly or indirectly, any other corporation, limited liability company, partnership, joint venture, association, trust or other business organization except as described in the Prospectus and the Registration Statement; each of MPW Industrial Services, Inc., MPW Management Services Corp., Weston Engineering, Inc., Aquatech Environmental, Inc., ESI International, Inc., and ESI North Limited (collectively, the "Significant Subsidiaries" and individually, a "Significant Subsidiary") has been duly incorporated and is validly existing as a corporation and in good standing under the laws of the State its jurisdiction of Delawareincorporation, with full corporate power and authority to own own, lease and operate its properties and to conduct its business as described in the Disclosure Package Prospectus and Final Prospectus the Registration Statement; each Significant Subsidiary is duly registered or qualified to do business as amended a foreign corporation under the laws of, and is in good standing as such in, the jurisdictions set forth in Attachment 1 to such opinion; the issued and outstanding shares of the capital stock of each Subsidiary have been duly authorized and validly issued, are fully paid and nonassessable and there are no statutory preemptive rights to subscribe for or supplemented, except where such failure would not have a material adverse effect on purchase any shares of capital stock of any Significant Subsidiary; the Company owns directly or indirectly and, to such counsel's knowledge, beneficially all of the issued and its subsidiariesoutstanding capital stock of each Subsidiary, taken as a wholefree and clear of any and all liens, claims, encumbrances and security interests;
(Bv) insofar as The certificates for the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport Shares to describe specific provisions of the Securities or the Indenture, such statements present be delivered hereunder conform in all material respects an accurate summary to the requirements of such provisions;
(C) the Indenture has been applicable law; and when duly authorized, executed and delivered countersigned by the Company, has been duly qualified under the Trust Indenture Act's transfer agent, and constitutes a legal, valid and binding obligation enforceable delivered to the Representatives or upon the order of the Representatives against payment of the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law); and the Securities have been duly authorized and, when executed and authenticated agreed consideration therefor in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, the Shares to be sold by the Company represented thereby will be legalduly authorized and validly issued, valid fully paid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effectnonassessable, and subject free of any preemptive rights to general principles subscribe for or purchase shares of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law)Common Stock;
(Dvi) the The Registration Statement and any amendments thereto have has become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use Statement has been issued and no proceedings for that purpose have been instituted initiated or are threatened under the Act or any Blue Sky Laws; the Registration Statement and the Prospectus and any amendment or supplement thereto (except for the financial statements and other statistical or financial data included therein as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; no facts have come to the attention of such counsel which lead it to believe that either the Registration Statement or the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omitted or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of the First Closing Date or the Second Closing Date, as the case may be, contained any untrue statement of a material fact or omitted or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they were made (except for the financial statements and other financial and statistical data included therein as to which such counsel need express no opinion); to the best of such counsel's knowledge, there are no legal or governmental proceedings pending or contemplated under threatened, including, without limitation, any such proceedings that are related to environmental or employment discrimination matters, required to be described in the Registration Statement or the Prospectus which are not so described or which question the validity of this Agreement or any action taken or to be taken pursuant thereto, nor is there any transaction, relationship, agreement, 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 to the Registration Statement by the Act, which is not described or filed as required;
(Evii) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly authorized, executed and delivered by and on behalf of the Company;
(F) no authorization, approval and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution may be limited by applicable law or the public policy underlying such law and except as enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other action byequitable relief; no consent, and no notice toapproval, consent ofauthorization or other order or decree of any court, order ofregulatory or governmental body, arbitrator, administrative agency or filing with, any U.S. federal other instrumentality of the United States or California other country or Delaware governmental authority or agency jurisdiction having jurisdiction over the Company is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated herein, by this Agreement (except such as have been obtained under for compliance with the Act, the Exchange Act Act, applicable Blue Sky Laws and the Trust Indenture Act clearance of the underwriting arrangements by the NASD);
(viii) The execution, delivery and such as may be required under performance of this Agreement by the blue sky Company will not: (A) violate any provisions of the Charter or By-laws of the Company or any jurisdiction in connection with Subsidiary; (B) violate, to the purchase and distribution best of the Securities and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securitiescounsel's knowledge, the consummation of any other of the transactions herein contemplated provisions of, or the fulfillment of the terms hereof will conflict with, result in a breach the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the charter Company or by-laws any Subsidiary is a party or by which the Company or such Subsidiary, or any of their respective owned or leased property is bound, and which is filed as an exhibit to the Registration Statement; or (C) violate, to the best of such counsel's knowledge, any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States or other country or jurisdiction having jurisdiction over the Company or any Subsidiary (assuming compliance with all applicable federal and state securities laws);
(ix) To the best of such counsel's knowledge, except as described in the Prospectus, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws;
(x) Neither the Company nor any Subsidiary is an "investment company", an "affiliated person" of, or "promoter" or "principal underwriter" for, an "investment company", as such terms are defined in the Investment Company Act of 1940, as amended, and, upon its receipt of any proceeds from the sale of the Shares, the Company will not become or be deemed to be an "investment company" thereunder;
(xi) The description in the Registration Statement and the Prospectus of statutes, law, regulations, legal and governmental proceedings, and contracts and other legal documents described therein, insofar as they purport to summarize or characterize certain of the provisions thereof, fairly and correctly present, in all material respects, the information required to be included therein by the Act; and In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company orand of governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date.
(e) The Representatives shall have received an opinion of McDe▇▇▇▇▇, ▇▇ll & Emer▇, ▇▇unsel for the Underwriters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the issuance and sale of the Shares by the Company, the Registration Statement and other related matters as the Representatives may require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as they request for the purpose of enabling them to pass upon such matters.
(f) The Representatives shall have received on each Closing Date, a certificate of Mont▇ ▇. ▇▇▇▇▇, ▇▇ief Executive Officer, and Ira ▇. ▇▇▇▇, ▇▇esident and Chief Operating Officer, of the Company, to the effect that:
(i) The representations and warranties of the Company and the Principal Shareholder set forth in section 2 hereof are true and correct as of the date of this Agreement and as of the date of such counsel’s knowledgecertificate, and the Company has complied with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate;
(ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending or contemplated under the Act or under the Blue Sky Laws of any jurisdiction;
(iii) Each of the respective signatories has carefully examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, and such documents contain all statements required to be stated therein, and do not include any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set forth; and
(iv) Since the date on which the Registration Statement was initially filed with the Commission, there shall not have occurred any change or development involving, or which could be expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, except as disclosed in the Prospectus and the Registration Statement as heretofore amended or (but only if the Representatives expressly consent thereto in writing) as disclosed in an amendment or supplement thereto filed with the Commission and delivered to the Representatives after the execution of this Agreement; since such date and except as so disclosed or in the ordinary course of business, the terms Company has not incurred any liability or obligation, direct or indirect, or entered into any transaction which is material to the Company; since such date and except as so disclosed, there has not been any change in the outstanding capital stock of any Material Agreementsthe Company, or any change that is material decree or regulation known to such counsel to be applicable to the Company in the short-term debt or long-term debt of the Company; since such date and except as so disclosed, the Company has not acquired any U.S. federal of the Common Stock or California other capital stock of the Company nor has the Company declared or Delaware court,paid any dividend, or made any other distribution, upon its outstanding Common Stock payable to shareholders of record on a date prior to such Closing Date; since such date and except as so disclosed, the Company has not incurred any material con
Appears in 1 contract
Sources: Underwriting Agreement (MPW Industrial Services Group Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Fund and the Adviser contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date, to the accuracy in all material respects of the statements of the Company Fund and the Adviser made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Fund or the Adviser of its their obligations hereunder or to the Representatives’ waiver in writing thereof and to the following additional conditions:
(a) The Final Prospectus, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), Prospectus and any Issuer Free Writing Prospectus shall supplements thereto have been filed in the manner and within the time period required by Rule 433497; and no stop order suspending the effectiveness of the Registration Statement, Statement or any notice that would prevent objecting to its use, as amended from time use or order pursuant to time, Section 8(e) of the 1940 Act shall have been issued and no proceedings for that purpose shall have been instituted or threatenedthreatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or Final Prospectus or otherwise) shall have been complied with in all material respects.
(b) The Company Fund shall have requested and caused Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Fund, to have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyRepresentatives its opinion, dated the Closing DateDate and addressed to the Representatives, substantially to the effect that:
(Ai) Based solely on our review of the Company has been Delaware Certificate, the Trust is duly incorporated formed and is validly existing as a corporation and is in good standing under the laws DSTA.
(ii) Based solely on our review of the New York Certificate, the Trust is authorized to do business in the State of Delaware, with full corporate New York.
(iii) The Trust has the statutory trust power and authority under the DSTA to own own, lease and operate its properties and to conduct its business as described in the Disclosure Package Preliminary Prospectus and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;Prospectus.
(Biv) insofar as The Trust has the statements contained in the Disclosure Package, the statements contained in the Final Prospectus statutory trust power and authority under the caption “Description DSTA to execute and deliver each of the Global Notes” Transaction Agreements and to consummate the statements contained in transactions contemplated thereby, including the Base Prospectus under the caption “Description issuance and sale of the Debt Securities” purport to describe specific provisions .
(v) Each of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) the Indenture NY Transaction Agreements has been duly authorized, executed and delivered by all requisite statutory trust action on the Company, part of the Trust under the DSTA and duly executed and delivered by the Trust under the laws of the State of New York to the extent that such execution and delivery is governed by the laws of the State of New York. The Custodian Contract has been duly qualified authorized, executed and delivered by all requisite statutory trust action on the part of the Trust under the DSTA and duly executed and delivered by the Trust Indenture Act, under the laws of the Commonwealth of Massachusetts to the extent that such execution and delivery is governed by the laws of the Commonwealth of Massachusetts.
(vi) Each of the Investment Advisory Agreement and the Transfer Agency Agreement constitutes a legal, the valid and binding obligation of the Trust, enforceable against the Company Trust in accordance with its terms under the laws of the State of New York. The Custodian Contract constitutes the valid and binding obligation of the Trust, enforceable against the Trust in accordance with its terms under the laws of the Commonwealth of Massachusetts.
(subject vii) Neither the execution and delivery by the Trust of the Transaction Agreements nor the consummation by the Trust of the transactions contemplated thereby, including the issuance and sale of the Securities: (i) conflicts with the Organizational Documents, (ii) constitutes a violation of, or a default under, any Scheduled Contract, (iii) contravenes any Scheduled Order or (iv) causes the creation of any security interest or lien (other than those expressly created by the Transaction Agreements) upon any of the property of the Trust pursuant to applicable bankruptcyany Scheduled Contracts.
(viii) Neither the execution and delivery by the Trust of the NY Transaction Agreements nor the consummation by the Trust of the transactions contemplated thereby, insolvencyincluding the issuance and sale of the Securities, fraudulent transferviolates the DSTA or any law, reorganizationrule or regulation of the State of New York. Neither the execution and delivery by the Trust of the Custodian Contract, arrangementnor the consummation by the Trust of the transactions contemplated thereby, moratorium including the issuance and other similar laws relating sale of the Securities, violates the DSTA or any law, rule or regulation of the Commonwealth of Massachusetts.
(ix) Neither the execution and delivery by the Trust of the NY Transaction Agreements nor the consummation by the Trust of the transactions contemplated thereby, including the issuance and sale of the Securities, requires the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental authority under the DSTA or any law, rule or regulation of the State of New York or the United States of America except for those consents, approvals, licenses and authorizations already obtained and those filings, recordings and registrations already made. Neither the execution and delivery by the Trust of the Custodian Contract nor the consummation by the Trust of the transactions contemplated thereby requires the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental authority under the DSTA or any law, rule or regulation of the Commonwealth of Massachusetts or the United States of America except for those consents, approvals, licenses and authorizations already obtained and those filings, recordings and registrations already made.
(x) Neither the execution and delivery by the Trust of the Transaction Agreements nor the consummation by the Trust of the transactions contemplated thereby, including the issuance and sale of the Securities (i) violates the 1940 Act or the General Rules and Regulations under the 1940 Act (the “1940 Act Rules and Regulations”) or (ii) requires the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental authority under the 1940 Act or the 1940 Act Rules and Regulations except for those consents, approvals, licenses and authorizations already obtained and those filings, recordings and registrations already made; provided, however, that in each case we do not express any opinion with respect to (A) the antifraud provisions of any of the foregoing or affecting (B) the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law); eligibility under the 1940 Act and the 1940 Act Rules and Regulations of The Bank of New York Mellon Corporation (formerly known as Mellon Trust of New England NA) to act as custodian for the Trust.
(xi) The provisions of the Declaration and the By-Laws do not violate the 1940 Act and the 1940 Act Rules and Regulations.
(xii) The Trust has an authorized capitalization as set forth in the Preliminary Prospectus and the Prospectus. The Securities have been duly authorized by all requisite statutory trust action on the part of the Trust under the DSTA and, when executed and authenticated in accordance with duly entered into the provisions stock record books of the Indenture Trust and delivered to and paid for by the Underwriters in accordance with the terms of this the Underwriting Agreement, will be legalvalidly issued, valid fully paid and binding obligations nonassessable and free and clear of any preemptive rights or any similar rights arising under the DSTA, the Organizational Documents or any Scheduled Contract.
(xiii) The statements in the Preliminary Prospectus and the Prospectus under the captions “Description of the Company enforceable against Shares” and “Anti-Takeover Provisions of the Company Fund’s Governing Documents” insofar as such statements purport to summarize certain provisions of the Organizational Documents fairly summarize such provisions in accordance with their terms all material respects.
(subject xiv) To our knowledge, there are no legal or governmental proceedings pending to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium which the Trust is a party that are required to be disclosed in the Prospectus pursuant to Item 12 of Form N-2 under the Securities Act and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect1940 Act that are not so disclosed therein, and subject no contract or other document is required to general principles of equity, regardless of whether such enforceability is considered be described in a proceeding in equity the Prospectus or at law);
(D) to be filed as an exhibit to the Registration Statement and any amendments thereto have become effective under the Act; any required that is not described therein or filed as required.
(xv) The filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 497 under the Securities Act Rules and Regulations has been made in the manner and within the time period required by Rule 424(b497 of the Securities Act Rules and Regulations.
(xvi) No person has any right under the Trust’s Certificate of Trust, the Declaration, the By-Laws, the DSTA or Rule 433, as under any Scheduled Contract to cause the case may be; Company to register under the Securities Act any shares of securities or to include any such securities in the Registration Statement or the offering contemplated thereby.
(xvii) Based upon and subject to the best knowledge foregoing, we are of the opinion that under current U.S. federal income tax law, although the discussion set forth in the Prospectus under the headings “Taxation” does not purport to discuss all possible U.S. federal income tax consequences of the purchase, ownership or disposition of the Securities, such counseldiscussion constitutes, no stop order suspending in all material respects, a fair and accurate summary of the effectiveness U.S. federal income tax consequences that are anticipated to be material to holders who purchase the Securities in the offering described in the Prospectus, subject to the qualifications set forth in such discussion. 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 Fund and public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) You shall have received on the Closing Date an opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, counsel to the Adviser, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) The Investment Adviser has been duly organized and is validly existing as a limited liability company, is in good standing under the laws of the State of New York, and has the authority to own its property and to conduct its business as described in the Registration Statement, the Base Prospectus, each Preliminary Final Prospectus and the Final Prospectus. To my knowledge, the nature of the Investment Adviser’s business operations does not require it to register to conduct its business in any jurisdiction in which it is not currently registered;
(ii) The Investment Adviser is registered with the Commission as amendedan investment adviser under the Advisers Act, and is not prohibited by the Advisers Act, the 1940 Act or any notice that would prevent its use the rules and regulations of the Commission under the Advisers Act from acting under the Management Agreement as contemplated by the Registration Statement, the Base Prospectus, each Preliminary Final Prospectus and the Final Prospectus, and no order of suspension or revocation of such registration has been issued and no or proceedings for that purpose have been instituted or are pending or contemplated under therefore initiated or, to my knowledge, threatened by the ActCommission;
(Eiii) this The Investment Adviser has the limited liability company power and authority to enter into the Underwriting Agreement and the Management Agreement, and the Underwriting Agreement has been duly authorized, executed and delivered by the CompanyInvestment Adviser;
(Fiv) no The Management Agreement has been duly authorized, executed and delivered by the Adviser and the Management Agreement is a valid and legally binding agreement of the Adviser, assuming due authorization, approval execution and delivery by the other parties thereto, enforceable against the Adviser in accordance with its terms subject to the qualification that the enforceability of the Adviser’s obligations thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or other action byaffecting creditors’ rights generally and by general equitable principles;
(v) The Management Agreement contains the provisions required by Section 205 of the Advisers Act and Section 15 of the 1940 Act and is enforceable against the Investment Adviser in accordance with its terms;
(vi) The execution and delivery by the Investment Adviser of, and no notice tothe performance by the Investment Adviser of its obligations under, consent ofthe Management Agreement and the Underwriting Agreement will not contravene the Certificate of Formation and the Amended and Restated Operating Agreement of the Investment Adviser (each as currently in effect) or, to my knowledge, any agreement binding on the Investment Adviser or any judgment, order of, or filing with, decree of any U.S. federal or California state governmental body, agency or Delaware court having jurisdiction over the Investment Adviser;
(vii) The description of the Investment Adviser in the Registration Statement, the Base Prospectus, each Preliminary Final Prospectus and the Final Prospectus complies in all material respects to the applicable requirements of the 1933 Act, the 1940 Act and the 1940 Act Rules and Regulations;
(viii) To my knowledge, there are no legal or governmental proceedings pending or threatened to which the Investment Adviser is a party or to which any of the properties of the Investment Adviser is subject that is expected to result in a Material Adverse Effect on the Investment Adviser or impair the ability of the Investment Adviser to act as the investment adviser for the Fund or that are required to be described in the Registration Statement, the Preliminary Prospectus or the Prospectus and are not so described;
(ix) No consent, approval, authorization, or filing with any U.S. federal or New York governmental authority or agency or, to my knowledge, any court is required for the consummation performance by the Investment Adviser of the transactions contemplated hereinManagement Agreement and the Underwriting Agreement, except such (a) as have been made or obtained and are in full force and effect under the 1933 Act, 1934 Act, the Exchange 1940 Act, the Advisers Act and or the Trust Indenture Act and such rules of the NYSE MKT, or (b) as may be required (i) by the rules of the Financial Industry Regulatory Authority, Inc., or (ii) under the securities or “blue sky sky” laws of any jurisdiction in the United States in connection with the purchase offer and distribution sale of the Securities Securities, in each case as to which I express no opinion; and In addition to the above opinions, nothing has come to my attention that has caused me to believe that the description of the Investment Adviser in the Registration Statement, at the time such other approvals (specified Registration Statement became effective, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the description of the Investment Adviser in the Final Prospectus, as of its date and the date hereof 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. In addition, nothing has come to my attention that has caused me to believe that the description of the Investment Adviser in the Preliminary Final Prospectus, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. 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 Adviser and public officials. References to the Final Prospectus in this paragraph (c) as have been obtained; andshall also include any supplements thereto at the Closing Date.
(Gd) none of The Representatives shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the issue 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 consummation of any other of the transactions herein contemplated or the fulfillment of the terms hereof will conflict with, result in a breach of, or constitute a default underRegistration Statement, the charter or by-laws of the Company or, to such counsel’s knowledgeBasic Prospectus, the terms of Preliminary Final Prospectus and the Final Prospectus (together with any Material Agreementssupplement thereto) and other related matters as the Representatives may reasonably require, or any material decree or regulation known and the Fund and the Adviser shall have furnished to such counsel such documents as they request for the purpose of enabling them to be applicable pass upon such matters.
(e) Each of the Fund and the Adviser shall have furnished to the Company Representatives a certificate, signed by the Chairman of any U.S. federal the Board or California the President or Delaware court,Executive V
Appears in 1 contract
Sources: Underwriting Agreement (GAMCO Global Gold, Natural Resources & Income Trust by Gabelli)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Notes shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Applicable Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) hereof and as of the Closing Date, to the accuracy in all material respects of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final ProspectusProspectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, or and any supplement theretoother material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed in with the manner and Commission within the applicable time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, Statement or any notice that would prevent its use, as amended from time to time, part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or threatenedthreatened 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 to your reasonable satisfaction.
(b) King & Spalding LLP, counsel for the Company, shall have furnished to you their written opinion, dated the Closing Date, in substantially the form of Annex I hereto.
(c) The General Counsel of the Company and the Senior Vice President and Deputy General Counsel for Wholesale Banking, Procurement Contracting and Corporate Real Estate of the Company shall have furnished to you their written opinion, dated the Closing Date, in substantially the form of Annex II hereto.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entity and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP, delivered pursuant to Section 6(b), and the opinion of the General Counsel of the Company and the Senior Vice President and Deputy General Counsel for Wholesale Banking, Procurement Contracting and Corporate Real Estate of the Company, delivered pursuant to 6(c).
(e) At the Applicable Time and at the Closing Date, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, 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 Pricing Disclosure Package and the Prospectus.
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any 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, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(h) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(i) The Company shall have furnished or caused to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the Company, dated be furnished to you at the Closing Date, substantially to the effect that:
(A) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws Date certificates of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(B) insofar as the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations officers of the Company enforceable against satisfactory to you as to the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing accuracy of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, representations and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or the fulfillment of the terms hereof will conflict with, result in a breach of, or constitute a default under, the charter or by-laws warranties of the Company orherein at and as of such time, as to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to be applicable to performance by the Company of any U.S. federal all of its respective obligations hereunder to be performed at or California or Delaware court,prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Issuers, Operating Partnerships and the General Partners contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) Time and as of the Closing Date, to the accuracy in all material respects of the statements of the Company Issuers, Operating Partnerships and the General Partners made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Issuers, Operating Partnerships and the General Partners of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, or and any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall will have been filed in the manner and within the time period required by Rule 424(b); the Term Sheet and any other material required to be filed by the Issuers 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 and, to the knowledge of the Issuers, no stop order suspending the effectiveness of the Registration Statement, Statement or any notice that would prevent its use, as amended from time to time, use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Issuers shall have requested and caused ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Issuers, the Operating Partnerships and the General Partners, to have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyRepresentative their opinion, dated the Closing DateDate and addressed to the Representative, substantially to the effect that:
(Ai) the Company has been duly incorporated and Finance Corp. is a corporation validly existing as a corporation and in good standing under the laws of the State jurisdiction of Delawareits organization, with full all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being conducted;
(ii) The General Partner is a corporation duly incorporated and presently subsisting under the laws of the jurisdiction of its organization, with all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being conducted and to act as general partner of the Partnership and AmeriGas Propane;
(iii) Eagle General Partner is a corporation duly incorporated, validly existing and in good standing under the laws of the jurisdiction of its organization, with all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being conducted and to act as general partner of AmeriGas Eagle;
(iv) Each of the Partnership and the Operating Partnerships has been duly formed and each of the Partnership and the Operating Partnerships is validly existing as a limited partnership under the Delaware Act, with full partnership power and authority to own or lease, as the case may be, and to operate its properties and conduct its business respective businesses as described in the Disclosure Package and Preliminary Final Prospectus and the Final Prospectus;
(v) The Issuers, the Operating Partnerships and the General Partners have all requisite corporate and partnership power and authority to execute, deliver and perform their respective obligations under this Agreement and the Indenture, and to consummate the transactions contemplated herein and therein, including, without limitation, the corporate or partnership power to issue, sell and deliver the Securities as amended provided herein;
(vi) The statements in the Basic Prospectus under the caption “Description of the Notes,” insofar as they constitute descriptions of the Indenture and the Securities or supplementedrefer to statements of law or legal conclusions under New York, Delaware corporate or partnership or federal law (except for the Federal Motor Carrier Safety Act and any state or municipal fire safety codes, as to which such counsel need not express any opinion), constitute fair summaries thereof in all material respects;
(vii) No consent, approval, waiver, license or authorization, or other action by any New York, Delaware or federal governmental authority is required in connection with the issuance and sale of the Securities by the Issuers or for the consummation by each of the Issuers, the Operating Partnerships and the General Partners of their obligations under this Agreement, the Indenture or the Securities, except where in each case such failure consents, approvals, waivers, licenses and other actions (A) as may be required under federal or state securities or Blue Sky laws (as to which, such counsel need not express any opinion), or (B) which, if not obtained, would not have a material adverse effect upon the financial condition, business or results of operations of the Issuers and the Operating Partnerships, taken as a whole, or the General Partners;
(viii) This Agreement has been duly authorized and validly executed and delivered by each of the Partnership Entities;
(ix) None of the Issuers, or the Operating Partnerships or the General Partners is an “investment company” or a company “controlled by” an “investment company” as such terms are defined in the Investment Company Act of 1940, as amended;
(x) The execution and delivery of this Agreement by Finance Corp. and the consummation by the Issuers, the Operating Partnerships and the General Partners of the transactions contemplated hereby will not conflict with, constitute a default under or violate (A) any of the terms, conditions or provisions of the certificate of incorporation or by-laws of Finance Corp., (B) any of the terms, conditions or provisions of any document, agreement or other instrument known to such counsel to which either of the Issuers, the Operating Partnerships or the General Partners is a party or by which any of such entities is bound (other than as described in the Prospectus and except for documents, agreements or other instruments that will be extinguished on the Closing Date), (C) any New York, Delaware corporate or partnership or federal law or regulation (assuming compliance with all applicable federal and state securities or Blue Sky laws and assuming the receipt of all consents, approvals, waivers, licenses and other actions referred to in clause (2) of Section 6(b)(vii) above, as to which such counsel need not express any opinion) or (iv) any judgment, writ, injunction, decree, order or ruling known to such counsel applicable to either of the Issuers, the Operating Partnerships or the General Partners, except for such conflicts, breaches and defaults which would not have a material adverse effect on the Company financial condition, business, properties or results of operations of the Partnership and its subsidiariesthe Operating Partnerships, taken as a whole;
(Bxi) insofar as the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) the The Indenture has been duly and validly authorized, executed and delivered by each of the CompanyIssuers and (assuming the due authorization, has been duly qualified under execution and delivery thereof by the Trust Indenture Act, Trustee) and constitutes a the legal, valid and binding obligation of each such person, enforceable against the Company each such person in accordance with its terms terms, subject (subject A) to applicable bankruptcy, insolvency, fraudulent transferconveyance, reorganization, arrangement, moratorium and other similar laws relating to or affecting the creditors’ rights and remedies of creditors generally from time and (B) as to time in effectenforceability, and subject to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing, regardless of whether such enforceability enforcement is considered sought in a proceeding at law or in equity equity, and except (x) to the extent that a waiver of rights under any usury laws may be unenforceable and (y) that rights to indemnification and contribution thereunder may be limited by federal or at law); state securities laws or public policy relating thereto;
(xii) The issuance and sale of the Securities have been duly and validly authorized by each of the Issuers and, when executed issued and authenticated in accordance with the provisions terms of the Indenture by the Issuers and delivered to the Trustee and paid for by the Underwriters in accordance with the terms provisions of this Agreementthe Agreement and the Final Prospectus, will be constitute the legal, valid and binding obligations of the Company Issuers, enforceable against the Company Issuers in accordance with their terms and entitled to the benefits of the Indenture, subject (subject A) to applicable bankruptcy, insolvency, fraudulent transferconveyance, reorganization, arrangement, moratorium and other similar laws relating to or affecting the creditors’ rights and remedies of creditors generally from time and (B) as to time in effect, and subject enforceability to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing, regardless of whether such enforceability enforcement is considered sought in a proceeding at law or in equity or at law)equity, and except to the extent that a waiver of rights under any usury laws may be unenforceable;
(Dxiii) Neither the execution and delivery of this Agreement by the General Partner nor the consummation by the General Partner of any of the transactions contemplated hereby, will conflict with, constitute a default under or violate any of the terms, conditions or provisions of the articles of incorporation or by-laws of the General Partner;
(xiv) 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 Partnership Entities or any of their property of a character required to be disclosed in the Registration Statement Statement, the Basic Prospectus, the Preliminary Final Prospectus or the Final 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, the Basic Prospectus, the Preliminary Final Prospectus or the Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements in the Partnership’s Annual Report on Form 10-K for its fiscal year ended September 30, 2005 under the heading “Business — Government Regulation,” which are incorporated by reference into the Final Prospectus, 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 as of the filing date of the Partnership’s Annual Report on Form 10-K for its fiscal year ended September 30, 2005, and, to the knowledge of such counsel, such summaries are accurate and fair summaries as of the Closing Date in all material respects, except with respect to the Federal Motor Carrier Safety Act and any amendments thereto have state or municipal fire safety codes, as to which such counsel need not express any opinion; and
(xv) The Registration Statement has become effective under the Act; any filing required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be); to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, Statement or any notice that would prevent its use has been issued and issued, no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action bythreatened, and the Registration Statement and the Final Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for opinion) comply as to form in all material respects with the consummation applicable requirements of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture Act Act. In addition, such counsel shall state that it has participated in conferences with directors, officers and other representatives of the General Partner and Finance Corp. and representatives of the independent public accountants for each of the Issuers, the Operating Partnerships and the General Partners at which conferences the contents of the Registration Statement, the Disclosure Package and the Final Prospectus and related matters were discussed, and that, although such counsel has not independently verified and need not pass upon, or assume responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Final Prospectus (except to the extent specified in the foregoing opinion), no facts have come to such counsel’s attention which lead such counsel to believe that (i) the Registration Statement, on the Effective Date, contained 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 contained therein not misleading; (ii) the documents included in the Disclosure Package, when taken together as a whole, at the Execution Time, 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 contained therein, in the light of circumstances under which they were made, not misleading, or (iii) the Final Prospectus, on the date thereof or on 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 contained therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel need not express any view with respect to the financial statements and related notes, the financial statement schedules and the other financial, statistical and accounting data included in, or incorporated by reference into, any document included in the Disclosure Package and the Final Prospectus). In rendering their opinions as aforesaid, such counsel may be required under rely upon an opinion or opinions, each dated the blue sky Closing Date, of other counsel retained by them or either of the Issuers, the Operating Partnerships or the General Partners as to laws of any jurisdiction other than the United States or the States of New York and Delaware; provided that (A) each such local counsel is reasonably acceptable to you and (B) such reliance is expressly authorized by each opinion so relied upon and a copy of each such opinion is delivered to you and is, in form and substance, reasonably satisfactory to you and your counsel. In rendering such opinion, such counsel may (A) rely in respect of matters of fact upon certificates (original counterparts of which shall be furnished to you) of the Partnership and the Operating Partnerships and of officers and employees of the Partnership, Finance Corp., and the General Partners and upon information obtained from public officials, (B) rely wholly upon (without independent investigation) opinions of other counsel issued in connection with the purchase Transactions, (C) state that their opinion is limited to federal laws, New York law, Pennsylvania law, the Delaware Act and distribution the Delaware General Corporation Law, (D) assume that all documents submitted to them as originals are authentic, that all copies submitted to them conform to the originals thereof, and that the signatures on all documents examined by such counsel are genuine, (E) state that they express no opinion with respect to the title of any of the Securities General Partners, the Partnership, the Operating Partnerships or any of their affiliates to any real or personal property transferred by or to them and such other approvals (specified in such opinionF) as have been obtained; andstate that they express no opinion with respect to state or local taxes or tax statutes to which any of the limited partners of the Partnership or the Operating Partnerships may be subject;
(Gc) none of The Representative shall have received from Shearman & Sterling LLP, counsel for the issue 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 consummation of any other of the transactions herein contemplated or the fulfillment of the terms hereof will conflict with, result in a breach of, or constitute a default underIndenture, the charter or by-laws of the Company or, to such counsel’s knowledgeDisclosure Package, the terms of Final Prospectus (together with any Material Agreementssupplement thereto) and other related matters as the Representative may reasonably require, or any material decree or regulation known and the Issuers shall have furnished to such counsel such documents as they request for the purpose of enabling them to be applicable pass upon such matters.
(d) The Issuers shall have furnished to the Company Representative a certificate, signed by the President or any Vice President and the principal financial or accounting officer of any U.S. federal or California or Delaware court,Finance Corp. and the General Partners, dated the Closing Date, to the effect that:
(i) the representations and warranties of the Issuers, Operating Partnerships and the General Partners 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 Issuers, Operating Partnerships and the General Partners have complie
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters Underwriters, as to purchase Securities to be purchased at the Securities Time of Delivery, shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) hereof and at and as of the Closing DateTime of Delivery, to the accuracy in all material respects of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final ProspectusProspectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a)(i); the final term sheet contemplated by Section 5(a)(i), or and any supplement theretoother material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed in with the manner and Commission within the applicable time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, Statement or any notice that would prevent its use, as amended from time to time, part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or threatened.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 issued and no proceeding for that purpose 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 to your reasonable satisfaction;
(b) The Company Shearman & Sterling LLP, counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated the Representatives:Time of Delivery, in form and substance satisfactory to you, with respect to such matters as the Underwriters may reasonably require, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(ic) the opinion of the General Counsel, an Associate The Company’s General Counsel or a Deputy General Counsel such other internal counsel as shall be reasonably acceptable to the Underwriters shall have furnished to you such counsel’s written opinion, to the effect set forth in Exhibit A, dated the Time of the CompanyDelivery, or an outside in form and substance satisfactory to you;
(d) ▇▇▇▇▇▇▇ LLP, Maryland counsel for the Company, dated the Closing Dateshall have furnished to you their written opinion, substantially to the effect that:
(A) set forth in Exhibit B, dated the Company has been duly incorporated Time of Delivery, in form and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full corporate power and authority substance satisfactory to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken as a wholeyou;
(B) insofar as the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to be applicable to the Company of any U.S. federal or California or Delaware court,
Appears in 1 contract
Sources: Underwriting Agreement (Huntington Bancshares Inc/Md)
Conditions to the Obligations of the Underwriters. The obligations obligation of the Underwriters to purchase and pay for the Securities shall will be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Dateherein, to the accuracy in all material respects of the written statements of officers of the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditionsconditions precedent:
(ai) On or prior to the date of this Agreement, the Representative shall have received a letter, dated the date of this Agreement, of Coop▇▇▇ & ▇ybr▇▇▇ ▇▇▇ substantially in the form heretofore agreed, which letter shall be in form and substance agreed to by the Representative.
(ii) The Final Registration Statement shall have become effective prior to the Execution Time, and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or the Representative, shall be contemplated by the Commission or by any authority administering any state securities or blue sky law; the Prospectus and any supplements thereto shall have been filed (if required) with the Commission in accordance with the Rules and Regulations and the applicable paragraphs of Section 5 hereof; if filing of the Prospectus, or any supplement thereto, shall have been filed in the manner and within the time period is required under pursuant to Rule 424(b), and any Issuer Free Writing the Prospectus shall have been be filed in the manner and within the time period required by Rule 433424(b); and no stop order suspending the effectiveness of the Registration Statement, or any notice that would prevent its use, as amended from time to time, Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(iii) Subsequent to the execution and delivery of this Agreement, there shall have not occurred (a) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company or Onyx which, in the reasonable judgment of the Underwriters, materially impairs the investment quality of the Securities; (b) any suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of Onyx on any exchange or in the over-the-counter market by such exchange or over-the-counter market or by the Commission; (c) any banking moratorium declared by Federal, New York or California authorities; (d) any outbreak or material escalation of major hostilities or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Representative, the effect of any such outbreak, escalation, calamity or emergency on the United States financial markets makes it impracticable or inadvisable to proceed with completion of the sale of, and any payment for, the Securities.
(iv) The Company Underwriters shall have furnished to the Representatives:
(i) the opinion of the General Counsel, received an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the Companyopinion, dated the Closing Date, of Andr▇▇▇ & ▇urt▇ ▇.▇. P., counsel of the Company, substantially to the effect that:
(Aa) the The Company has been (1) is duly incorporated and is validly existing as a corporation and in good standing under the laws of the State of Delaware, with full (2) has the corporate power and corporate authority to own its properties and conduct its business as described in the Disclosure Package Prospectus and Final Prospectus as amended or supplemented(3) had at all relevant times, except where such failure would not have a material adverse effect on and now has, the Company power, authority and its subsidiarieslegal right to acquire, taken as a wholeown and sell the Contracts;
(Bb) insofar as The Company has, or at the statements contained time such agreement was executed and delivered, had, the corporate power and corporate authority to execute and deliver this Agreement, the Trust Agreement, the Servicing Agreement, the Purchase Agreement and the Insurance Agreement and to consummate the transactions contemplated herein and therein;
(c) No consent, approval, authorization or order of, or filing with, any California, Delaware or federal governmental agency or body or any court is or was required by the Company to perform the transactions contemplated by this Agreement, the Trust Agreement and the Servicing Agreement, the Purchase Agreement or the Insurance Agreement except for (1) filing of a Uniform Commercial Code financing statement in the Disclosure PackageState of California with respect to the transfer of the Contracts to the Trust pursuant to the Trust Agreement and the Servicing Agreement, and the sale of the Contracts to the Company pursuant to the Purchase Agreement (2) such consents, approvals, authorizations, orders or filings as may be required under the federal which have been made or obtained and (3) such consents, approvals, authorizations, orders or filings as may be required under state securities laws;
(d) None of the execution, delivery and performance by the Company of this Agreement, the statements contained Trust Agreement, the Servicing Agreement, the Purchase Agreement or the Insurance Agreement, the transfer of the Contracts to the Trust, the assignment of the security interests of the Company in the Final Prospectus under Financed Vehicles, the caption “Description issuance and sale of the Global Notes” and Securities or the statements contained consummation of any other of the transactions contemplated herein or in the Trust Agreement, the Servicing Agreement, the Purchase Agreement or the Insurance Agreement conflicts or will conflict with, has resulted or will result in a breach, violation or acceleration of any of the terms of, or has constituted or will constitute a default under, the By-Laws or the Certificate of Incorporation of the Company, as amended, or, to the best of such counsel's knowledge, any rule, order, statute or regulation known to such counsel to be currently applicable to the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Company or the terms of any material indenture or other material agreement or instrument known to such counsel to which the Company is a party or by which it or its properties are bound;
(e) To the best knowledge of such counsel, after due inquiry, there are no actions, proceedings or investigations pending or threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of this Agreement, the Trust Agreement, the Servicing Agreement, the Purchase Agreement or the Insurance Agreement or the Securities, (2) seeking to prevent the issuance of the Securities or the consummation of any of the transactions contemplated by this Agreement, the Trust Agreement, the Servicing Agreement, the Purchase Agreement or the Insurance Agreement (3) seeking adversely to affect the federal income tax attributes of the Securities as described in the Base Prospectus under the caption “Description of headings "SUMMARY OF TERMS -- Tax Status"; "CERTAIN FEDERAL INCOME TAX CONSEQUENCES"; "TRUSTS FOR WHICH A PARTNERSHIP ELECTION IS MADE" and "TRUSTS TREATED AS GRANTOR TRUSTS" and in the Debt Securities” purport to describe specific provisions of Prospectus Supplement under the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisionsheadings "SUMMARY OF TERMS -- Federal Income Tax Status" and "Certain Federal Income Tax Consequences";
(Cf) This Agreement, the Indenture has Trust Agreement, the Servicing Agreement, the Purchase Agreement and the Insurance Agreement have each been duly authorized, executed and delivered by the Company;
(g) The Contracts constitute "chattel paper" as defined in Section 9-105(a)(2) of the Uniform Commercial Code of the State of California;
(h) The statements in the Prospectus under the caption "Certain Legal Aspects of the Contracts," and "ERISA Considerations" to the extent they constitute matters of California or federal law or legal conclusions, are correct in all material respects;
(i) The direction by the Company to the Co-Owner Trustee to authenticate the Certificates has been duly qualified under authorized by the Company and, when the Certificates have been duly executed, authenticated and delivered by the Co-Owner Trustee in accordance with the Trust Indenture ActAgreement and delivered and paid for pursuant to this Agreement, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Trust Agreement.
(j) When the Notes have been duly executed and delivered by the Co-Owner Trustee on behalf of the Trust, authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be the valid, legal and binding obligations of the Trust, enforceable against the Trust in accordance with their terms, subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent or preferential conveyance and other similar laws of general application relating to or affecting creditors' rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(k) Assuming the authorization, execution and delivery thereof by each party thereto other than the Company, Fundco and Onyx, each of the Trust Agreement, the Purchase Agreements, the Servicing Agreement and the Insurance Agreement constitutes a the legal, valid and binding obligation agreement of the Company, enforceable against the Company in accordance with its terms terms, subject, as to enforcement, to (subject to applicable 1) the effect of bankruptcy, insolvency, fraudulent transfer, reorganization, arrangementmoratorium, moratorium fraudulent or preferential conveyance and other similar laws of general application relating to or affecting the creditors' rights and remedies of creditors generally from time to time in effectgenerally, and subject to general principles of equity, equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and (2) the Securities have been duly authorized and, when executed and authenticated in accordance with the unenforceability under certain circumstances of provisions of the Indenture and delivered indemnifying a party against liability where such indemnification is contrary to and paid for by the Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law)public policy;
(Dl) the The Registration Statement and any amendments thereto have become became effective under the Act; any required filing Act as of the Base Prospectusdate and time specified in such opinion; after due inquiry, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act; the Registration Statement, and each amendment thereof or supplement thereto as of its Effective Date and the Prospectus as of its date of issuance appeared on its face to be appropriately responsive in all material respects to the applicable requirements of the Securities Act and the Rules and Regulations, and such counsel need not opine as to the financial statements and related notes, schedules and other financial and statistical data included therein; and any required filing of the Prospectus and Prospectus Supplement pursuant to Rule 424(b) has been made;
(Em) The Securities, the Indenture, the Trust Agreement, the Servicing Agreement, the Purchase Agreement, and the Guarantee conform in all material respects to the descriptions thereof contained in the Registration Statement and the Prospectus;
(n) The Trust Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended;
(o) The Indenture has been duly qualified under the Trust Indenture Act; and
(p) The Company is not, and will not as a result of the offer and sale of the Securities as contemplated in the Prospectus and this Agreement become, an "investment company" as defined in the Investment Company Act of 1940, as amended (the "Investment Company Act")or a company "controlled by" an "investment company" within the meaning of the Investment Company Act.
(q) The Trust is not now, and immediately following the sale of the Securities pursuant to this Agreement will not be, required to be registered under the Investment Company Act.
(r) The Indenture, the Sale and Servicing Agreement and the Administration Agreement, assuming that they have been duly authorized by, and when duly executed and delivered by, the Owner Trustee on behalf of the Trust, will constitute the legal, valid and binding obligations of the Trust, enforceable against the Trust in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent or other preferential conveyance and other similar laws and other similar laws of general application relating to or affecting the rights of creditors generally and to general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law). In addition, such counsel shall opine (i) as to certain matters relating to the acquisition by the Company of a perfected first priority security interest in the vehicles financed by the Contracts and (ii) as to the existence of a valid, perfected, first priority security interest in the Contacts in favor of the Owner Trustee from the Company and in favor of the Indenture Trustee from the Owner Trustee. In rendering such opinion, such counsel may rely (i) as to matters of fact, to the extent deemed proper and as stated therein, on certificates of responsible officers of the Company and public officials and (ii) on other opinions of counsel as specified therein. References to the Prospectus in this paragraph (iv) include any supplements thereto.
(v) The Underwriters shall have received an opinion, dated the Closing Date, of Andr▇▇▇ & ▇urt▇ ▇.▇.P., counsel to Onyx and Fundco, substantially to the effect that:
(a) Each of Onyx and Fundco (1) is duly incorporated and is validly existing and in good standing under the laws of the State of its incorporation, (2) has the corporate power and corporate authority to own its properties and conduct its business as described in the Prospectus and (3) had at all relevant times, and now has, the power, authority and legal right to acquire, own and sell the Contracts;
(b) Each of Onyx and Fundco has the corporate power and corporate authority to execute and deliver the Servicing Agreement, the Administration Agreement, and the Purchase Agreements, to the extent applicable, and at the time it was executed and delivered, had the power and authority to execute and deliver the Purchase Agreement and the Servicing Agreement, the Administration Agreement, to the extent applicable, and to consummate the transactions contemplated herein and therein;
(c) No consent, approval, authorization or order of, or filing with, any California or federal governmental agency or body or any court is required by Onyx or Fundco to perform the transactions contemplated by the Servicing Agreement, the Administration Agreement or the Purchase Agreements, as applicable, except for (1) filing of a Uniform Commercial Code financing statement in the State of California with respect to the sale of the Contracts to the Company pursuant to the Purchase Agreements and (2) such consents, approvals, authorizations, orders or filings as may be required under the federal and state securities laws; the opinion set forth in this sentence is limited to such authorizations, approvals, consents and orders which, in such counsel's experience, are normally applicable to transactions of the type contemplated by the Servicing Agreement, the Administration Agreement and the Purchase Agreements, as applicable;
(d) None of the execution, delivery and performance by Onyx or Fundco of the Servicing Agreement, the Administration Agreement or the Purchase Agreements, as applicable, or the transfer of the Contracts to the Company, has conflicted with or will conflict with, has resulted or will result in a breach, violation or acceleration of any of the terms of, or has constituted or will constitute a default under, the By-Laws or the Certificate of Incorporation of Onyx or Fundco, as amended, or, to the best of such counsel's knowledge, any rule, order, statute or regulation known to such counsel to be currently applicable to Onyx or Fundco of any court, regulatory body, administrative agency or governmental body having jurisdiction over Onyx or Fundco or the terms of any material indenture or other material agreement or instrument known to such counsel to which Onyx or Fundco is a party or by which it or its properties are bound;
(e) The Servicing Agreement, the Administration Agreement and the Purchase Agreements have each been duly authorized, executed and delivered by Onyx and Fundco, as applicable;
(f) The indemnification agreement dated as of the date hereof, between Onyx and the Underwriters has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtainedOnyx; and
(Gg) none of Assuming the issue authorization, execution and sale of delivery thereof by the SecuritiesCompany with respect to the Servicing Agreement, the consummation of any other of Administration Agreement and the transactions herein contemplated or 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, to such counsel’s knowledge, the terms of any Material Purchase Agreements, or any material decree or regulation known to each such counsel to be applicable to the Company of any U.S. federal or California or Delaware court,
Appears in 1 contract
Sources: Underwriting Agreement (Onyx Acceptance Financial Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of or any document incorporated by reference therein) and as of the Additional Closing Date, as the case may be, to the accuracy in all material respects of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, or and any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus 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, Statement or any notice that would prevent objecting to its use, as amended from time to time, use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives:
(i) the opinion of the General Counselrequested and caused ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the Company, to have furnished to the Representative their opinion, dated the Closing Date or any Additional Closing Date, substantially as the case may be, and addressed to the Representative, to the effect that:
(Ai) The Registration Statement has become effective under the Company Act; any required filing of the Base Prospectus, any Preliminary Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been duly incorporated made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued, no proceedings for that purpose have been instituted or threatened, and the Registration Statement and the Final Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder; and such counsel has no reason to believe that on the Effective Date the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order 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 in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion)
(ii) The Company is validly existing as a corporation and in good standing under the laws of the State of Delaware, with full . Each of the Guarantors is validly existing as a limited liability company and in good standing under the laws of the State of Delaware.
(iii) The Company has the corporate power and corporate authority under the laws of the State of Delaware to (i) execute and deliver, and incur and perform all of its obligations under, the Underwriting Agreement, the Base Indenture, the Supplemental Indenture and the Securities (collectively the “Transaction Documents”) and (ii) carry on its business and own its properties and conduct its business as described in the Registration Statement, the Disclosure Package and the Final Prospectus Prospectus. Each of the Guarantors has the limited liability company power and authority under the laws of the State of Delaware to (i) execute and deliver, and to incur and perform all of its obligations under, the Transaction Documents to which it is a party and (ii) carry on its business and own its properties as amended or supplementeddescribed in the Registration Statement, except where such failure would not have a material adverse effect on the Company Disclosure Package and its subsidiaries, taken as a whole;the Final Prospectus.
(Biv) insofar as the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description Each of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) the Indenture Transaction Documents has been duly authorized, executed and delivered by the Company, . Each of the Underwriting Agreement and the Supplemental Indenture has been duly qualified under authorized, executed and delivered by each of the Trust Guarantors. The guarantees of the Securities included in the Indenture Acthave been duly authorized by each of the Guarantors.
(v) None of the execution and delivery of, and constitutes a legal, valid and binding obligation enforceable against or the incurrence or performance by the Company and the Guarantors (collectively, the “Obligors”) of their respective obligations under, each of the Transaction Documents to which it is a party, each in accordance with its terms terms, including the issuance of the Common Stock upon the conversion of the Securities, (subject A) constituted, constitutes or will constitute a violation under any provision of the Delaware Limited Liability Company Act, Delaware General Corporation Law, Regulation T, U or X of the Board of Governors of the Federal Reserve System or the applicable laws of the State of Texas, State of New York or U. S. federal law, (B) constituted, constitutes or will constitute a violation under the certificate of incorporation, certificate of formation, bylaws, operating agreement or limited liability company agreement or any other formation or governing document of the Company or the Guarantors, (C) constituted, constitutes, or will constitute a breach or violation of, or a default (or an event which, with notice or lapse of time or both, would constitute such a default) under any agreement or other instrument binding upon the Company or any of the Subsidiaries filed as an exhibit to applicable bankruptcythe Company’s Registration Statement on Form S-3 (File No. 333-197440) or, insolvencyother than the Credit Agreement, fraudulent transfer, reorganization, arrangement, moratorium any of the agreements and other similar laws relating instruments filed as exhibits to the Company’s Annual Report on Form 10-K for the year ended December 31, 2015 or affecting to any Form 10-Q or Form 8-K of the rights Company filed since the filing of such Annual Report on Form 10-K and remedies prior to the Closing Date (the “Applicable Agreements”), (D) resulted, results or will result in the creation of creditors generally from time any security interest in, or lien upon, any of the property or assets of any Obligor pursuant to time any of the Applicable Agreements, or (E) to such counsel’s knowledge, resulted, results or will result in effectthe contravention of any judgment, and subject to general principles order or decree of any governmental body, agency or court having jurisdiction over the Company or any Subsidiary, except for any contravention described in clauses (A), (C) or (D) which would not, individually or in the aggregate, have a material adverse effect on the business, properties, financial position, stockholders’ equity, regardless results of whether such enforceability is considered in operations, or prospects of the Company and its subsidiaries, taken as a proceeding in equity whole, or at law); on the performance by the Company and the Guarantors of their obligations under the Securities and the Guarantees (a “Material Adverse Effect”). With respect to clauses (C) and (E) above, such counsel expresses no opinion as to the application of any state securities or Blue Sky laws or federal or state antifraud laws, rules or regulations.
(vi) The authorized capital stock of the Company conforms as to legal matters to the description thereof contained in each of the Registration Statement, the Disclosure Package and the Final Prospectus. The authorized, issued and outstanding capital stock of the Company is as set forth in the Registration Statement, the Disclosure Package and the Final Prospectus under the caption “Capitalization.”
(vii) The Securities to be issued and sold by the Company hereunder 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 in accordance with the terms of this Agreement, will be legalfully paid and nonassessable; the shares of Common Stock initially issuable upon conversion of the Securities have been duly authorized and, when issued upon conversion of the Securities against payment of the conversion price, will be validly issued, fully paid and nonassessable; and none of the Securities or shares of Common Stock issuable upon conversion thereof are being issued in violation of any preemptive or similar rights pursuant to (i) any of Applicable Agreements, (ii) the certificate of incorporation or bylaws of the Company in effect on the date hereof or (iii) the Delaware General Corporation Law.
(viii) No consent, approval, authorization or order of, or qualification or filing with, any governmental body or agency is required for the execution and delivery by each of the Company and the Guarantors of, or the performance or incurrence by the Company or the Guarantors of their respective obligations under, the Transaction Documents or the consummation of the transactions thereunder, except (A) as have been or will be obtained or made on or prior to the Closing Date, (B) registration of the Securities under the Securities Act, and qualification of the Indenture under the Trust Indenture Act or (C) where the failure to obtain such consent, approval, authorization, order or qualification would not reasonably be expected to have a Material Adverse Effect or materially impair the ability of the Company and Guarantors to consummate the transactions contemplated by the Transaction Documents.
(ix) The statements under the captions “Description of Other Indebtedness”, “Description of Capital Stock” and “Description of Notes” in the Disclosure Package and the Final Prospectus, insofar as such statements purport to summarize the Indenture and the Securities, fairly summarize the Indenture and the Securities in all material respects, subject to the qualifications and assumptions stated therein.
(x) The statements in the Disclosure Package and the Final Prospectus under the caption “Material United States Federal Income Tax Considerations”, insofar as they refer to statements of law or legal conclusions, fairly summarize the matters referred to therein in all material respects, subject to the qualifications and assumptions stated therein.
(xi) The Indenture constitutes a valid and binding obligation of each of the Obligors, enforceable against each of them in accordance with its terms, under the laws of the State of New York, except as such enforceability may be limited by the Enforceability Exceptions; and the Indenture conforms in all material respects with the requirements of the Trust Indenture Act and the rules and regulations of the Commission applicable to an indenture that is qualified thereunder.
(xii) When authenticated by the Trustee in the manner provided in the Indenture and delivered to and paid for by the Underwriters in accordance with the Underwriting Agreement, the Securities will constitute valid and binding obligations of the Company Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms, under the laws of the State of New York, except as such enforceability may be limited by the Enforceability Exceptions.
(xiii) When the Securities have been authenticated by the Trustee in the manner provided in the Indenture and delivered to and paid for by the Underwriters in accordance with the Underwriting Agreement, the guarantees of the Securities included in the Indenture will constitute a valid and binding obligation of the Guarantors, enforceable against the Guarantors in accordance with the terms of the Indenture, under the laws of the State of New York, except as such enforceability may be limited by the Enforceability Exceptions.
(subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effectxiv) The Obligors are not, and subject immediately after giving effect to general principles the issuance and sale of equity, regardless the Securities pursuant to the Underwriting Agreement and the application of whether such enforceability is considered proceeds therefrom as described in a proceeding in equity or at law);
(D) the Registration Statement Statement, the Disclosure Package and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, will not be, an “investment company” within the meaning of said term as used in the Investment Company Act of 1940, as amended.
(xv) In a case properly argued and presented, a Texas court or a United States federal court sitting in Texas and applying Texas conflict of law principles as set out in Chapter 271 of the Texas Business and Commerce Code, would give effect to the provisions of the Securities and the provisions of the Indenture that purport to require that the rights and obligations of the parties thereto are to be governed by and construed in accordance with the laws of the State of New York.
(xvi) Each of the Registration Statement (including the Incorporated Documents), as of its most recent effective date, the Preliminary Prospectus (including the Incorporated Documents), as of its date, and the Final Prospectus (including the Incorporated Documents), as of its date (in each case, other than (i) the financial statements and related schedules, including the notes and schedules thereto and the auditor’s report thereon (and any other financial or accounting data derived therefrom) and (ii) oil and natural gas reserve estimates, in each case included or incorporated or deemed incorporated by reference in, or excluded from, the Registration Statement, the Disclosure Package or Final Prospectus, as to which such counsel expresses no opinion), appeared on its face to be appropriately responsive in all material respects to the requirements of the Securities Act and the rules and regulations of the Commission thereunder (except that such counsel expresses no statement or belief as to Regulation S-T). 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 Texas, the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto, pursuant to Rule 424(b) thereto at the Closing Date or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433any Additional Closing Date, as the case may be; .
(c) The Representative shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or any Additional Closing Date, as the case may be, and addressed to the best knowledge 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.
(d) The Company shall have furnished to the Representative a certificate of the Company, signed by two executive officers of the Company, dated the Closing Date or any Additional Closing Date, as the case may be, to the effect that the signers of such counselcertificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or any Additional Closing Date, as the case may be with the same effect as if made on the Closing Date or any Additional Closing Date, as the case may be and the Company has materially 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 any Additional Closing Date, as the case may be;
(ii) no stop order suspending the effectiveness of the Registration Statement, as amended, Statement or any notice that would prevent objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorizedor, executed and delivered by to the Company;
(F) no authorization’s knowledge, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtainedthreatened; and
(Giii) none since the date of the issue most recent financial statements included in the Disclosure Package and sale of the Securities, the consummation Final Prospectus (exclusive of any other of the transactions herein contemplated or the fulfillment of the terms hereof will conflict withsupplement thereto), result in a breach of, or constitute a default under, the charter or by-laws of the Company or, to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to be applicable to the Company of any U.S. federal or California or Delaware court,there has
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Notes shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) hereof and as of the Closing Date, to the accuracy in all material respects of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final ProspectusProspectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, or and any supplement theretoother material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed in with the manner and Commission within the applicable time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, Statement or any notice that would prevent its use, as amended from time to time, part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or threatenedthreatened 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 to your reasonable satisfaction.
(b) King & Spalding LLP, counsel for the Company, shall have furnished to the Underwriters an opinion, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Issuer Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects;
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “Certain U.S. Federal Income Tax Consequences” and “ERISA Considerations,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974 and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects; and
(c) The Company shall have furnished to the Representatives:
(i) Underwriters an opinion, dated the opinion Closing Date, of the General Counsel▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the Company, dated the Closing Date, substantially to the effect that:
(Ai) the The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of DelawareGeorgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and Final 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) The Company has been duly qualified as amended a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or supplementedleases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, except where all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such failure counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would not individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a wholewhole and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(Bvi) insofar as the statements contained in the Disclosure PackageThe execution and delivery of this Agreement, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary the issuance and sale of such provisions;
(C) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture ActNotes, and constitutes the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a legalbreach or violation of any of the terms or provisions of, valid and binding obligation enforceable against or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies any violation of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms Restated Certificate of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration StatementIncorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted statute or are pending any order, rule or contemplated under regulation known to such counsel of any court or governmental agency or body having jurisdiction over the ActCompany, SunTrust Bank or any of their properties;
(Evii) this Agreement has been duly authorizedNo consent, executed and delivered by the Company;
(F) no approval, authorization, approval order, registration or other action by, and no notice to, consent of, order of, qualification of or filing with, with any U.S. federal court or California governmental agency or Delaware governmental authority or agency body is required for the issue and sale of the Notes or the consummation by the Company of the transactions contemplated hereinby the Underwriting Agreement, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the blue sky state securities or Blue Sky laws of any jurisdiction in connection with the purchase and distribution of the Securities Notes by the Underwriters;
(viii) The Company is and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other approvals (specified in than the financial statements and related schedules and other financial information contained therein and the Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as have been obtainedto form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(Gx) none The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the issue Securities Act or the Exchange Act, as applicable, and sale the rules and regulations of the SecuritiesCommission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the consummation Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(i) the Registration Statement, as of its effective date, contained an 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;
(ii) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(iii) the Prospectus, as of its date and as of the date hereof, contained or contains an 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; or
(iv) any amendment to the Registration Statement is required to be filed or that there are 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 or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (i), (ii), (iii) and (iv) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to the Statement of Eligibility on Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP delivered pursuant to Section 6(b).
(e) At the Time of Delivery, PricewaterhouseCoopers LLP and Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I hereto.
(f) Neither the Company nor any of its Significant Subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any 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, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time, the Notes shall have been accorded a rating of not less than “A+” by Standard & Poor’s Ratings Service, not less than “Aa3” by ▇▇▇▇▇’▇ Investors Service, Inc. and not less than “A+” by Fitch Ratings.
(i) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(j) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. makes it impracticable or inadvisable to proceed with the public offering or the delivery of the transactions herein contemplated or the fulfillment of Notes on the terms hereof will conflict with, result and in a breach of, the manner contemplated in the Prospectus.
(k) The Company shall have furnished or constitute a default under, caused to be furnished to you at the charter or by-laws Time of Delivery certificates of officers of the Company orand trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to be applicable to performance by the Company of any U.S. federal all of their respective obligations hereunder to be performed at or California or Delaware court,prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Execution Timethough made on, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date hereof and (including the filing of any document incorporated by reference thereinii) on, and as of though made on, the Closing Date, to the accuracy in all material respects of the statements of the Company Republic made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Final ProspectusPrior to the Closing Date, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus 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, or any notice that would prevent its use, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) of this Agreement; and any final term sheet contemplated by Section 4(a) hereof, and any other material required to be filed by the Republic 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.
(b) The Company Head or Acting Head of the Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyRepresentatives such counsel’s written opinion, dated the Closing Date, substantially to the effect that:
(i) The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Republic and the Agreements constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(iv) The Securities have been duly authorized, executed, issued and delivered by the Republic in accordance with the Indenture, and, assuming due authentication and delivery by the Trustee, the Securities constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms entitled to the benefits provided by the Indenture;
(v) The obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Securities) of the Republic that will rank equal in right of payment with all other present and future unsecured and unsubordinated External Indebtedness of the Republic;
(vi) There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of any of the Agreements, the issue of the Securities as contemplated herein and in the Prospectus, or the performance or observance by the Republic of any of the terms of the Agreements or the Securities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the due execution, delivery and performance by the Republic of any of the Agreements or the Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for (I) Law 533 of November 11, 1999, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999, (III) the relevant portions of Law 80 of October 28, 1993, (IV) Law 781 of December 20, 2002, (V) Law 1366 of December 21, 2009, (VI) Law 1624 of April 29, 2013, (VII) Decree No. 2681 of December 29, 1993, (VIII) Resolution No. 0712 dated March 20, 2015 of the Ministerio de Hacienda y Crédito Público, (IX) CONPES Document No. 3818 DNP:SC-DEE MINHACIENDA, dated October 2, 2014; (X) Authorization by Act of the Comisión Interparlamentaria de Crédito Público adopted in its meeting held on October 22, 2014; (XI) Authorization by Act of the Comisión Interparlamentaria de Crédito Público adopted in its meeting held on February 25, 2015; and (XII) External Resolution No. 8 dated August 29, 2014 of the Board of Governors of the Central Bank of Colombia (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not necessary that any Agreement or the Securities be registered, recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General or Acting Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 0712 dated March 20, 2015 issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) the publication of the Agreements in the Sistema Electrónico de Contratación Pública-SECOP of the Republic, to satisfy the requirement for such publications, (B) notice to the Banco de la República concerning the external indebtedness represented by the Securities and (C) in accordance with External Resolution No. 8 of August 29, 2014, issued by the Board of Governors of the Central Bank of Colombia, the delivery of written information from the Director General or the Acting Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público to the Board of Governors of the Central Bank of Colombia regarding the proposed issuance of the Securities, each of which shall be effected on or prior to the Closing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that the Securities are held by a non-resident and non-domiciliary of the Republic;
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process, subject to the terms, conditions, limitations or exceptions under (i) Articles 192, 195, 298 and 299 of Law 1437 of 2011 (Código de Procedimiento Administrativo y de lo Contencioso Administrativo); and (ii) Articles 684 and 513 of the Colombian Civil Procedure Code (Código de Procedimiento Civil), (which will be gradually superseded by Articles 593, 594 and 595 et al subject to the entry into force of Law 1564 of 2012 (Código General del Proceso) pursuant to the terms of article 627, paragraph 6 thereof) and Article 19 of Decree 111 of January 15, 1996, pursuant to which the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Indenture and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Indenture and the Securities as provided in Section 15 hereof, Section 9.7(a) of the Indenture and Section 16(a) of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur,” subject to the provisions of (i) Article 693 of the Colombian Civil Procedure Code (Código de Procedimiento Civil), which will be gradually superseded by article 605 (et al) subject to the entry into force of Law 1564 of 2012 (Código General del Proceso) pursuant to the terms of article 627, paragraph 6 thereof), which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic; and (ii) subject to compliance with the provisions of Article 694 and 695 of the Colombian Civil Procedure Code (Código de Procedimiento Civil), (which will be gradually superseded by articles 606 and 607, respectively, subject to the entry into force of Law 1564 of 2012 pursuant to the terms of article 627, paragraph 6 thereof). The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus, as amended or supplemented, and their filing with the Commission have been duly authorized by and on behalf of the Republic, and the Registration Statement, as amended, has been duly executed by and on behalf of the Republic, and the information in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, stated on the authority of public officials of the Republic has been stated in their official capacities thereunto duly authorized;
(xvii) The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Indenture, insofar as matters of Colombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Company has been duly incorporated and is validly existing as a corporation in good standing under Registration Statement, at the laws respective times each part became effective, contained an untrue statement of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on fact or omitted to state a material fact required to be stated therein or necessary to make the Company and its subsidiaries, taken as a wholestatements therein not misleading;
(B) insofar No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof 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 to make the statements contained therein, in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description light of the Global Notes” and the statements contained in the Base Prospectus circumstances under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenturewhich they were made, such statements present in all material respects an accurate summary of such provisions;not misleading; and
(C) the Indenture No information 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, come to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to attention that causes such counsel to be applicable believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in the Company Pricing Disclosure Package, as of any U.S. federal or California or Delaware court,the Ap
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities hereunder shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) hereof and as of the Closing Date, to the accuracy in all of any material respects of the statements of the Company made in any certificates delivered by certificates, opinions, affidavits, written statements or letters furnished to the Company Representative(s) or to counsel to the Underwriters identified on Schedule I hereto (“Underwriters’ Counsel”) pursuant to the provisions hereof, to the performance in all material respects by the Company of its respective obligations hereunder and to each of the following additional conditionsconditions precedent:
(a) The Final Prospectus, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in with the manner and Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filings pursuant to the Rules and Regulations and all filings required by Rule 433; 433 or Rule 424(b) shall have been made within the periods required by such Rules, and no stop such filings will have been made without the consent of the Representative(s).
(b) No order suspending the effectiveness of the Registration StatementStatement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any notice that would prevent its use, as amended from time to time, Issuer Free Writing Prospectus shall have been issued be in effect and no proceedings for that 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 instituted received by the Company; and any requests for additional information on the part of the Commission (to be included in the Registration Statement or threatenedthe Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative(s).
(bc) The Company shall have furnished to the Representatives:
(iRepresentative(s) the opinion of the General CounselChief Legal Officer, an Associate General Counsel or a Deputy an Associate General Counsel of the Company, or an outside counsel for addressed to the Company, Underwriters and dated the Closing Date, substantially to the effect that:
(Ai) the 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 State or territory thereof (a “Domestic Significant Subsidiary”) is a duly incorporated and validly existing corporation in good standing under the laws law of the State its jurisdiction of Delawareincorporation, with and has full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package Prospectus. Each of the Company and Final Prospectus the Domestic Significant Subsidiaries is duly qualified to do business as amended a foreign corporation, is in good standing in its jurisdiction of incorporation and is duly registered as a broker-dealer, broker, dealer or supplementedinvestment 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 such the failure to so qualify, to be in good standing or to register would not have a material adverse effect on 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 its subsidiariesclear of any claims, taken as a whole;liens, encumbrances and security interests.
(Biii) insofar as the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” The Securities and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present Common Stock conform in all material respects an accurate summary of such provisions;to the descriptions thereof contained in the Prospectus.
(Civ) The Company has an authorized capitalization as set forth in the Indenture Prospectus, and all of the 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 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 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, has been duly qualified under the Trust Indenture Act, issuance of the Securities and constitutes a legal, valid and binding obligation enforceable against the Conversion Shares initially issuable by the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies upon conversion of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of the Certificate of Designations or compliance by the Company with all of the provisions of this AgreementAgreement and the Certificate of Designations will not conflict with, will be legalor result in the creation or imposition of any lien, valid and binding obligations charge or encumbrance upon any of the assets of the Company enforceable against 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 in accordance with their terms (subject to applicable bankruptcyor the Domestic Significant Subsidiaries is a party or bound, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered result in a proceeding 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 equity or at law);the aggregate, to have a Material Adverse Effect.
(Dxi) the The Registration Statement and any amendments thereto have has become effective under the Securities Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectusand, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; 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.
(xii) The Registration Statement, the Prospectus and each amendment thereof or supplement thereto (except that no opinion need be expressed as amendedto 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 Conversion Shares with the New York Stock Exchange, and such counsel has no reason to believe that the Conversion Shares will not be authorized for listing, subject to official notice of 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 as 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 Chief Executive Officer, its President, Chief Operating Officer, Chief Administrative Officer, any notice 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 as of the Closing Date, to the effect that would prevent 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:
(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 use 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 threatened; and no notice of objection of the Commission to the use of the Registration Statement or contemplated under any post-effective amendment thereto pursuant to Rule 401(g)(2) of the Act;
(E) this Agreement Rules and Regulations has been duly authorized, executed and delivered received by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(Giii) none (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 issue and sale 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 Securitiescircumstances under which they were made, not misleading, (y) the consummation Prospectus did not, as of its date, and does not contain any other 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 transactions herein contemplated or circumstances under which they were made, not misleading, and (z) since the fulfillment applicable Effective Date 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, to such counsel’s knowledge, the terms of Registration Statement there has not occurred any Material Agreements, or any material decree or regulation known to such counsel event required to be applicable to the Company of any U.S. federal set forth in an amended or California or Delaware court,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 Securities Stock shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) hereof and as of the Closing each Delivery Date, to the accuracy in all of any material respects of the statements of the Company made in any certificates delivered by certificates, opinions, affidavits, written statements or letters furnished to the Company Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to the provisions hereofthis Section 6, to the performance in all material respects by the Company of its respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in with the manner and within the time period required by Commission pursuant to Rule 433; and no stop order suspending the effectiveness of the Registration Statement424 not later than 10:00 a.m., or any notice that would prevent its use, as amended from time to New York City time, on the business day following the date of this Agreement or such later date and time as shall have been issued and no proceedings for that purpose shall have been instituted or threatenedbe consented to in writing by the Representatives.
(b) The Company shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the Company, dated the Closing Date, substantially to the effect that:
(A) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(B) insofar as the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop No order suspending the effectiveness of the Registration Statement, as amendedamended from time to time, or any notice that would prevent its use has been issued shall be in effect and no proceedings for that such purpose shall be pending before or threatened by the Commission and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Final Prospectus or otherwise) shall have been instituted complied with to the reasonable satisfaction of the Representatives.
(c) Since the respective dates as of which information is given in the Registration Statement and the Final Prospectus, there shall not have been any change or are pending decrease specified in the letter referred to in paragraph (g) of this Section 6 which, in the judgment of the Representatives, makes it impracticable or inadvisable to proceed with the offering and delivery of the Stock as contemplated by the Registration Statement and the Final Prospectus.
(d) The Company shall have furnished to the Representatives the opinion of a Deputy General Counsel or the Chief Legal Officer for the Company, dated the day of each Delivery Date to the effect that:
(i) The Company has been duly organized and is validly existing and in good standing under the Actlaws of the jurisdiction of its incorporation with all requisite corporate power and authority to own and operate its properties and to conduct its business as described in the Final Prospectus.
(ii) The Stock conforms in all material respects to the descriptions thereof contained in the Final Prospectus.
(iii) The Company has an authorized capitalization as set forth in the Final Prospectus, and all of the issued shares of capital stock of the Company (including the shares of Stock 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;
(Eiv) this Agreement has been duly authorizedThere are no preemptive or other rights to subscribe for or to purchase, executed and delivered by nor any restriction upon the voting or transfer of, any shares of the Stock pursuant to the Company's charter or by-laws or any agreement or other instrument known to such counsel;
(Fv) no authorizationNo consent, approval approval, authorization or other action by, and no notice to, consent of, order of, of any court or filing with, any U.S. federal governmental agency or California or Delaware governmental authority or agency body is required for the consummation of the transactions contemplated hereinin this Agreement, except for such consents, approvals, authorizations or orders as have been obtained under the Act, the Exchange Act and the Trust Indenture Securities Act and such as may be required under the Exchange Act and the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities and such other approvals (specified in such opinion) as have been obtained; andStock by the Underwriters.
(Gvi) none Such counsel does not know of any contracts or other documents which are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Rules which have not been filed as exhibits to the Registration Statement or incorporated therein by reference as permitted by the Rules.
(vii) To the best of such counsel's knowledge, neither the Company nor any Significant Subsidiary that is organized under the laws of the issue United States or any State or territory thereof (a "Domestic Significant Subsidiary") is in violation of its corporate charter or by-laws, or in default under any material agreement, indenture or instrument known to such counsel, the effect of which violation or default would be material to the Company and sale its subsidiaries taken as a whole.
(viii) 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 constitute a breach of, or result in the creation or imposition of any material lien, charge or encumbrance upon any of the Securities, the consummation of any other assets of the transactions herein contemplated Company or the fulfillment of any Domestic Significant Subsidiary pursuant to the terms hereof will conflict with, result in a breach of, or constitute a default under, any material agreement, indenture or instrument known to such counsel and to which the Company or any of its Significant Subsidiaries is a party of is bound, or result in a violation of the corporate charter or by-laws of the Company or, to such counsel’s knowledge, the terms of any Material Agreements, or any material decree Domestic Significant Subsidiary or any order, rule or regulation known to such counsel to 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 applicable material to the Company and its subsidiaries taken as a whole.
(ix) The Registrations Statement has become effective under the Securities Act, and, to the best of the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose is pending or threatened by the Commission.
(x) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto (except that no opinion need be expressed as to the financial statements or other financial or statistical data included or incorporated by reference therein) comply as to form in all material respects with the requirements of the Securities Act and the Rules.
(xi) If the Stock is 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 Stock with the NYSE, and such counsel has no reason to believe that the Stock will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution.
(xii) Each Domestic Significant Subsidiary is a duly organized and validly existing corporation in good standing under the laws of the jurisdiction of its incorporation with all requisite corporate power and authority to own and operate its properties and to conduct its business as described in the Final Prospectus. Each of the Company and the Domestic Significant Subsidiaries is duly qualified to do business as a foreign corporation, is in good standing and is duly registered as a broker-dealer, broker, dealer or investment advisor, as the case may be, in each jurisdiction in which the nature of the business conducted by it or in which the ownership or holding by lease of the properties owned or held by it require such qualification or registration and where the failure to so qualify or register would have a Material Adverse Effect.
(xiii) All the outstanding shares of capital stock of each Domestic Significant Subsidiary have been duly and validly authorized and issued and are fully paid and non-assessable and, except for directors' qualifying shares, are owned by the Company or a subsidiary of the Company free and clear of any U.S. federal claims, liens, encumbrances and security interests.
(xiv) Such counsel does not know of any litigation or California any governmental proceeding pending or Delaware court,threatened against the Company or any of its subsidiaries which would affect the subject matter of this Agreement or is required to be disclosed in the Final Prospectus which is not disclosed and correctly summarized therein. Such opinion shall also contain a statement that although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and the Final Prospectus (except as to those matters stated in paragraph (ii) of such opinion), such counsel has no reason to believe that (i) the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or (ii) the Final Prospectus contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that no opinion need be expressed as to the financial statements or other financial or statistical data included or incorporated by reference therein). In rendering such opinion, such counsel may rely upon opinions of local counsel satisfactory to the Representatives for matters not governed by New York law and may rely as to matters of fact, to the extent such counsel deems proper, upon certificates or affidavits of officers of the Company and public officials.
(e) The Representatives 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 Stock, the Registration Statement, the Final Prospectus and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a certificate of its Chief Executive Officer, its President or any Managing Director or Vice President and its Chief Financial Officer or its Treasurer, dated the day of each Delivery Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus and this Agreement, and that, to the best of their knowledge after due inquiry:
(i) The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of 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 has been issued and no proceedings for that purpose have been instituted or threatened.
(x) The Registration Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (y) the Final Prospectus does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (z) since the effective date of the Registration Statement there has not occurred any event required to be set forth in an amended or supplemented prospectus which has not been so set forth.
(g) At each Delivery Date, a nationally recognized firm of independent public accountants shall have furnished to the Representatives a letter, dated the day of such Delivery Date, confirming that they are independent auditors to the Company within the meaning of the Securities Act and in form and substance satisfactory to the Representatives, stating in effect that:
(i) In their opinion, the consolidated financial statements of the Company and its subsidiaries, and the supporting schedules, included in the Registration Statement and the Final Prospectus and audited by them comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act and the related published rules and regulations thereunder.
(ii) On the basis of a reading of the unaudited consolidated financial statements of the Company and its subsidiaries, if any, included in the Registration Statement and the Final Prospectus and of the latest unaudited consolidated financial statements made available by the Company and ▇▇▇▇▇▇ Brothers Inc., carrying out certain specified procedures (but not an audit in accordance with generally accepted auditing standards), a reading of the minutes of the meetings of the directors of the Company and ▇▇▇▇▇▇ Brothers Inc., and inquiries of certain officials of the Company and its subsidiaries, who have responsibility for financial and accounting matters of the Company and its subsidiaries, as to transactions and events subsequent to the date of the most recent audited consolidated financial statements included in the Registration Statement and the Final Prospectus, nothing came to their attention that caused them to believe that:
(A) any material modifications should be made to the unaudited consolidated financial statements of the Company and its subsidiaries, if any, included in the Registration Statement and the Final Prospectus, for them to be in conformity with generally accepted accounting principles; and such financial statements do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the published instructions, rules and regulations thereunder.
(B) the unaudited capsule information of the Company and its subsidiaries, if any, included in the Registration Statement and the Final Prospectus does not agree with the amounts set forth in the unaudited consolidated financial statements of the Company from which it was derived or was not determined on a basis substantially consistent with that of the corresponding financial information in the latest audited financial statements of the Company included in the Registration Statement and the Final Prospectus.
(C) (I) as of the latest date as of which the Company and its subsidiaries have monthly financial statements, there was any decrease in the capital stock, additional paid-in capital or retained earnings, or increase in long-term indebtedness of the Company and its subsidiaries, as compared with the amounts shown in the most recent consolidated statement of financial condition of the Company and its subsidiaries included in the Registration Statement and the Final Prospectus, (II) with respect to the period subsequent to the date of the most recent financial statements included in the Registration Statement and the Final Prospectus and extending through the latest date as of which the Company and its subsidiaries have monthly financial statements, there was a consolidated net loss or (III) with respect to the amounts of net capital or excess net capital of ▇▇▇▇▇▇ Brothers Inc. determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of ▇▇▇▇▇▇ Brothers Inc. filed pursuant to Commission Rule 17a-5, there has been any decrease in such amounts as compared with the amounts shown in the most recent consolidated financial statements included in the Registration Statement and the Final Prospectus;
(D) as of a specified date not more than three business days prior to the date of the letter, there was any decrease in the capital stock or additional paid-in capital, or increase in long-term indebtedness of the Company and its subsidiaries, as compared with the amounts shown in the most recent consolidated statement of financial condition of the Company and its subsidiaries included in the Registration Statement and the Final Prospectus; except in all instances for increase or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof, unless said explanation is not deemed necessary by the Representatives.
(iii) If pro forma financial statements are included in the Registration Statement or the Final Prospectus, (x) they have read such pro forma financial statements, (y) they have made inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company as to the basis for their det
Appears in 1 contract
Sources: Underwriting Agreement (Lehman Brothers Holdings Capital Trust V)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Fund and the Advisers contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of and any document incorporated by reference therein) and as of the Closing Datesettlement date pursuant to Section 4 hereof, to the accuracy in all material respects of the statements of the Company Fund and the Advisers made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Fund or the Advisers of its their obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), Prospectus and any Issuer Free Writing Prospectus shall supplements thereto have been filed in the manner and within the time period required by Rule 433497; and no stop order suspending the effectiveness of the Registration Statement, Statement or any notice that would prevent objecting to its use, as amended from time use or order pursuant to time, Section 8(e) of the 1940 Act shall have been issued and no proceedings for that purpose shall have been instituted or threatenedthreatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or Prospectus or otherwise) shall have been complied with in all material respects.
(b) The Company Fund shall have requested and caused Dechert LLP, counsel for the Fund, to have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyRepresentatives its opinion, dated the Closing DateDate and addressed to the Representatives, substantially to the effect that:
(Ai) the Company The Fund has been duly incorporated formed and is validly existing as a corporation in good standing as a statutory trust under the laws of the State of Delaware, with full corporate power and authority to own own, lease and operate its properties and to conduct its business as described in the Disclosure Package Preliminary Prospectus and Final Prospectus as amended or supplementedthe Prospectus, and is duly qualified to do business and, other than in the state of Arizona, is in good standing under the laws of each jurisdiction which requires such qualification, except where such to the extent that the failure to be so qualified would not have a material adverse effect on the Company Fund; and its the Fund has no subsidiaries, taken as a whole;
(Bii) insofar The Fund is duly registered with the Commission under the 1940 Act as a closed-end, non-diversified management investment company and all action has been taken by the statements contained in Fund as required by the Disclosure PackageAct, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” 1940 Act and the statements contained Rules and Regulations in connection with the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions issuance and consummation and sale of the Securities or as contemplated by this Agreement; the Indenture, such statements present Fund Agreements comply in all material respects an accurate summary with all applicable provisions of such provisionsthe Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations; and the Fund has not received any notice from the Commission pursuant to Section 8(e) of the 1940 Act with respect to the 1940 Act Notification or the Registration Statement;
(Ciii) the Indenture This Agreement has been duly authorized, executed and delivered by the Company, has Fund;
(iv) The Fund Agreements have been duly qualified under authorized, executed and delivered by the Trust Indenture ActFund, and assuming due authorization, execution and delivery by the other parties thereto, each of the Fund Agreements constitutes a legal, valid and legally binding obligation agreement of the Fund, enforceable against the Company Fund in accordance with its terms (terms, except as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to applicable the qualification that the enforceability of the Fund’s obligations thereunder may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the creditors’ rights generally and remedies of creditors generally from time to time in effect, and subject to by general equitable principles of equity, (regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(Dv) Neither the issuance and sale of the Securities, the execution, delivery or performance of this Agreement or any of the Fund Agreements by the Fund, nor the consummation by the Fund of the transactions contemplated in this Agreement or the Fund Agreements or the adoption of the Fund’s Dividend Reinvestment Plan (i) conflicts or will conflict with or constitutes or will constitute a breach of the Declaration of Trust or by-laws of the Fund, (ii) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease, permit or other instrument to which the Fund is a party or by which it or any of its properties may be bound that is an exhibit to the Registration Statement or that is known to such counsel after reasonable inquiry, (iii) violates or will violate any federal or Delaware statute, law or regulation, or, to such counsel’s knowledge after reasonable inquiry, violates or will violate any filing, judgment, injunction, order or decree applicable to the Fund or any of its properties, which violation would have a material adverse effect on the condition or business of the Fund or (iv) will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Fund pursuant to the terms of any material agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Fund is subject;
(vi) The Fund’s authorized equity capitalization is as set forth in the Preliminary Prospectus and any amendments thereto the Prospectus; the capital stock of the Fund conforms in all material respects to the description thereof contained in the Registration Statement, the Preliminary Prospectus and the Prospectus; all outstanding Common Shares have become effective been duly and validly authorized and issued and are fully paid and nonassessable by the Fund; the Securities have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable by the Fund; the Securities are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the NYSE; the certificates for the Securities are in valid and sufficient form; the holders of outstanding Common Shares are not entitled to preemptive or other rights to subscribe for the Securities and no holders of securities of the Fund have rights to the registration of such securities under the ActRegistration Statement; any required filing of and, except as set forth in the Base Preliminary Prospectus and the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any Issuer Free Writing Prospectusobligations into or exchange any securities for, any Preliminary Prospectus shares of capital stock of or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made ownership interests in the manner and within Fund are outstanding;
(vii) To the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending Dechert LLP lawyers who have been engaged in the effectiveness preparation of the Registration Statement, as amendedafter consultation with other Dechert LLP lawyers who spent substantial time representing the Fund on other matters, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Fund or its property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Preliminary Prospectus and the Prospectus, and there are no material agreements, contracts, indentures, leases, permits or other instruments that are required to be described in the Registration Statement, the Preliminary Prospectus or the Prospectus, or any notice that would prevent its use has been issued to be filed as an exhibit to the Registration Statement, which is not described or filed as required; and no proceedings for that purpose have been instituted or are pending or contemplated the statements included in the Preliminary Prospectus and the Prospectus under the Actheadings “Tax Matters,” “Tax Considerations,” “Description of Shares,” “Certain Provisions in the Declaration of Trust” and “Voting Rights and Capitalization” 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;
(Eviii) this Agreement has been duly authorizedNo consent, executed and delivered by the Company;
(F) no approval, authorization, approval filing with or other action by, and no notice to, consent of, order of, of any court or filing with, any U.S. federal governmental agency or California or Delaware governmental authority or agency body is required for on the consummation part of the Fund in connection with the transactions contemplated hereinherein or in the Fund Agreements, except such as have been made or obtained under the Act, the Exchange Act and the Trust Indenture 1940 Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Preliminary Prospectus and the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) No holders of securities of the Fund have rights to the registration of such securities under the Registration Statement; and
(Gx) none The Registration Statement has become effective under the Act; any required filing of the issue Prospectus, and any supplements thereto, pursuant to Rule 497 have been made in the manner and within the time period required by Rule 497; to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened by the Commission; and the Registration Statement, the Preliminary Prospectus and the Prospectus (other than the financial statements, the notes thereto and any schedules and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the 1940 Act and the Rules and Regulations; and, based upon its participation in the preparation of the Registration Statement, the Preliminary Prospectus and the Prospectus (but without checking the accuracy and completeness of or otherwise verifying the accuracy or completeness of the statements therein), nothing has come to the attention of such counsel that would cause counsel to believe that (a) the Registration Statement, at the time it became effective, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (b) the Preliminary Prospectus and the price to the public, the number of Underwritten Securities and the number of Option Securities to be included on the cover page of the Prospectus, when taken together as a whole, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and (c) the Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary 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, the notes thereto and any schedules and other financial and statistical information contained therein, as to which such counsel need express no belief). In rendering such opinion, such counsel may limit such opinion to matters involving the application of the laws of the State of Delaware, the State of New York and the federal laws of the United States. Such counsel may rely (A) as to matters involving the application of laws of the State of Delaware, to the extent they deem proper and specified in such opinion, upon the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A. or 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 Fund and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) You shall have received on the Closing Date an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Esq., Chief Counsel of the Adviser, dated the Closing Date and addressed to you, as Representatives of the several Underwriters, to the effect that:
(i) The Adviser has been duly formed and is validly existing in good standing as a limited liability company under the laws of the State of Arizona, with full power and authority to own, lease and operate its properties and to conduct its business as described in the Preliminary Prospectus and the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except to the extent that the failure to be so qualified would not have a material adverse effect on the Adviser.
(ii) The Adviser is duly registered under the Advisers Act as an investment adviser and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement, the Sub-Advisory Agreement, the Structuring Fee Agreement, the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Additional Compensation Agreement and the ▇.▇. ▇▇▇▇▇▇▇ Additional Compensation Agreement as contemplated by the Preliminary Prospectus and the Prospectus;
(iii) The Adviser has full power and authority to enter into this Agreement, the Management Agreement, the Sub-Advisory Agreement, the Structuring Fee Agreement, the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Additional Compensation Agreement and the ▇.▇. ▇▇▇▇▇▇▇ Additional Compensation Agreement;
(iv) This Agreement has been duly authorized, executed and delivered by the Adviser;
(v) The Management Agreement, the Sub-Advisory Agreement, the Structuring Fee Agreement, the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Additional Compensation Agreement and the ▇.▇. ▇▇▇▇▇▇▇ Additional Compensation Agreement have been duly authorized, executed and delivered by the Adviser and, assuming due authorization, execution and delivery by the other parties thereto, the Management Agreement, the Sub-Advisory Agreement, the Structuring Fee Agreement, the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Additional Compensation Agreement and the ▇.▇. ▇▇▇▇▇▇▇ Additional Compensation Agreement are each a valid and legally binding agreement of the Adviser, enforceable against the Adviser in accordance with its terms except as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Adviser’s obligations thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law);
(vi) This Agreement, the Management Agreement, the Sub-Advisory Agreement, the Structuring Fee Agreement, the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Additional Compensation Agreement and the ▇.▇. ▇▇▇▇▇▇▇ Additional Compensation Agreement comply in all material respects with all applicable provisions of the Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations;
(vii) Neither the issuance and sale of the Securities, the execution, delivery or performance of this Agreement, the Management Agreement, the Sub-Advisory Agreement, the Structuring Fee Agreement, the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Additional Compensation Agreement and the ▇.▇. ▇▇▇▇▇▇▇ Additional Compensation Agreement nor the consummation of any other by the Adviser of the transactions herein or therein contemplated (i) conflicts or will conflict with or constitutes or will constitute a breach of or default under the fulfillment certificate of formation or by-laws, or other organizational documents, of the terms hereof Adviser, (ii) conflicts or will conflict with, or constitutes or will constitute a breach of or default under any material agreement, indenture, lease or other instrument to which the Adviser is a party or by which it or any of its properties may be bound, (iii) violates or will violate any federal or Arizona statute, law or regulation, or any filing, judgment, injunction, order or decree applicable to the Adviser or any of its properties, which violation would have a material adverse effect on the condition or business of the Adviser or the Fund or (iv) will result in a breach ofthe creation or imposition of any material lien, charge or constitute a default under, the charter encumbrance upon any property or by-laws assets of the Company or, Adviser pursuant to such counsel’s knowledge, the terms of any Material Agreements, agreement or instrument to which it is a party or by which it may be bound or to which any material decree or regulation known to such counsel to be applicable to of the Company of any U.S. federal or California or Delaware court,property or
Appears in 1 contract
Sources: Underwriting Agreement (ING Risk Managed Natural Resources Fund)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Notes shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) Time and as of the Closing Date, to the accuracy in all material respects of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditions:
(a) The Canadian Final ProspectusSupplement shall have been filed with the Qualifying Authorities pursuant to the Canadian Shelf Procedures within the applicable time period prescribed for such filing thereunder and the U.S. Final Prospectus shall have been filed with the Commission pursuant to General Instruction II.L. of Form F-10 within the applicable time period prescribed for such filing by the rules and regulations under the Act and, or in each case, in accordance with Section 5(a) hereof; the November 2025 Marketing Materials required to be filed by the Company with the Qualifying Authorities shall have been filed within the applicable time period prescribed for such filings under Canadian Securities Law and the final term sheet contemplated by Section 5(c) hereto, and any supplement theretoother material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed in with the manner and Commission within the applicable time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, Statement or any notice that would prevent its use, as amended from time to time, part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or, to the knowledge of the Company, threatened by the Commission; no order having the effect of preventing or threatenedsuspending the use of any prospectus (including any Issuer Free Writing Prospectus) relating to the Notes shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Company, threatened by any Qualifying Authorities; and all requests for additional information on the part of any Qualifying Authority and the Commission shall have been complied with to the Representatives’ reasonable satisfaction.
(b) The Company shall have requested and caused Torys LLP, Canadian and United States counsel for the Company, M▇▇▇▇▇▇▇ LLP, British Columbia counsel for the Company, W▇▇▇▇▇▇ ▇▇▇▇ & G▇▇▇▇▇▇▇▇ LLP, special Investment Company Act counsel for the Company and local counsel in each province of Canada other than British Columbia, Ontario, Québec and Alberta (to the extent that Notes will be sold to the public in such other provinces), to have furnished to the Representatives their opinions, 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.
(ic) The Representatives shall have received from Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, United States counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Notes, the Indenture, the Registration Statement, the Disclosure Package, the U.S. Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters (it being understood that, to the extent such opinion relates to the laws of British Columbia and the federal laws of Canada applicable therein, such counsel shall be entitled to rely on the opinion of Canadian counsel to the General CounselCompany delivered pursuant to Section 6(b) hereof).
(d) The Representatives shall have received an appropriate legal opinion, an Associate General Counsel dated the Closing Date, in form and substance satisfactory to the Representatives acting reasonably, addressed to the Representatives and their counsel, of Torys LLP, as to compliance with the Applicable Securities Laws of Québec relating to the use of the French language in connection with the documents, including the Canadian Preliminary Prospectus, the Canadian Final Prospectus and any amendment or supplement thereto and the Notes to be delivered to purchasers in the Province of Québec.
(e) The Company shall have furnished to the Representatives a Deputy General Counsel certificate of the Company, signed by the Chairman of the Board or an outside counsel for the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, substantially to the effect that:
(A) that the Company has been duly incorporated and is validly existing as a corporation in good standing under signers of such certificate have carefully examined the laws of the State of DelawareRegistration Statement, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(B) insofar as the statements contained in the Disclosure Package, the statements contained in the Canadian Final Prospectus under and the caption “Description U.S. Final Prospectus and any supplements or amendments thereto, as well as each electronic road show (if any) used in connection with the offering of the Global Notes” , and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct (subject to materiality or other qualifications expressly set forth in such representations and warranties) on and as of the Closing Date with the same effect as if made on the Closing Date, except for representations and warranties that by their express terms are made as of a specific date, and the statements contained in Company has complied with all the Base Prospectus under agreements and satisfied all the caption “Description of conditions to be performed or satisfied at or prior to the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisionsClosing Date;
(Cii) 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, Statement or any notice that would prevent objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorizedor, executed and delivered by to the Company;
(F) no authorization’s knowledge, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtainedthreatened; and
(Giii) none since the date of the issue and sale of most recent financial statements included in the SecuritiesDisclosure Package, the consummation Canadian Final Prospectus and the U.S. Final Prospectus (exclusive of any other of supplement thereto), there has been no material adverse effect on the transactions herein contemplated condition (financial or the fulfillment of the terms hereof will conflict withotherwise), result in a breach ofprospects, earnings, business or constitute a default under, the charter or by-laws 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 Canadian Final Prospectus and the U.S. Final Prospectus (exclusive of any supplement thereto).
(f) The Company shall have requested and caused Deloitte LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, concerning the Financial Information set forth in the Disclosure Package, the U.S. Final Prospectus and the Canadian Final Prospectus.
(g) The Company shall have requested and caused Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, concerning the Oaktree Financial Information set forth in the Disclosure Package, the U.S. Final Prospectus and the Canadian Final Prospectus.
(h) At the Execution Time and at the Closing Date, the Company shall have furnished to the Representatives a certificate addressed to the Underwriters, dated respectively as of the Execution Time and as of the Closing Date, of the Chief Financial Officer of the Company, with respect to certain financial data contained in the Disclosure Package, the U.S. Final Prospectus and the Canadian Final Prospectus, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representatives.
(i) Subsequent to the Execution Time or, to such counsel’s knowledgeif earlier, the terms dates as of which information is given in the Registration Statement (exclusive of any Material Agreementsamendment thereto), the Canadian Final Prospectus and the U.S. Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i)(a) any change or decrease specified in the letter or letters referred to in paragraph (f) and (g) of this Section 6, or (b) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package, the Canadian Final Prospectus and the U.S. Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (a) or (b) above, is, in the sole judgment of the Representatives, so material decree and adverse as to make it impractical or regulation known inadvisable to proceed with the offering or delivery of the Notes as contemplated by the Registration Statement (exclusive of any amendment thereto), the Disclosure Package, the Canadian Final Prospectus and the U.S. Final Prospectus (exclusive of any amendment or supplement thereto); or (ii) any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel to for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be applicable canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company of any U.S. federal in writing or California by telephone or Delaware court,facsimile confirmed in writing.
Appears in 1 contract
Sources: Underwriting Agreement (Brookfield Asset Management Ltd.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Execution Timethough made on, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date hereof and (including the filing of any document incorporated by reference thereinii) on, and as of though made on, the Closing Date, to the accuracy in all material respects of the statements of the Company Republic made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Final ProspectusPrior to the Closing Date, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus 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, or any notice that would prevent its use, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) of this Agreement; and any final term sheet contemplated by Section 4(a) hereof, and any other material required to be filed by the Republic 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.
(b) The Company Head or Acting Head of the Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyRepresentatives such counsel’s written opinion, dated the Closing Date, substantially to the effect that:
(i) The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Republic and the Agreements constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(iv) The Securities have been duly authorized, executed, issued and delivered by the Republic in accordance with the Fiscal Agency Agreement, and, assuming due authentication and delivery by the Fiscal Agent, the Securities constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(v) The obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Securities) of the Republic that will rank equal in right of payment with all other present and future unsecured and unsubordinated External Indebtedness of the Republic;
(vi) There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of any of the Agreements, the issue of the Securities as contemplated herein and in the Prospectus, or the performance or observance by the Republic of any of the terms of the Agreements or the Securities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the due execution, delivery and performance by the Republic of any of the Agreements or the Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for (I) Law 533 of November 11, 1999, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999, (III) the relevant portions of Law 80 of October 28, 1993, (IV) Law 781 of December 20, 2002, (V) Law 1366 of December 21, 2009, (VI) Decree No. 2681 of December 29, 1993, (VII) Resolution No. 043 dated January 10, 2012 of the Ministerio de Hacienda y Crédito Público, (VIII) CONPES Document No. 3711 DNP:SC-DEE MINHACIENDA, dated November 25, 2011, (IX) Authorization by Act of the Comisión Interparlamentaria de Crédito Público adopted in its meeting held on December 7, 2011 and (X) External Resolution No. 7 dated November 25, 2011 of the Board of Governors of the Central Bank of Colombia (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not necessary that any Agreement or the Securities be registered, recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 043 dated January 10, 2012 issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) a summary of the Agreements in the Diario Único de Contratación Pública of the Republic, to satisfy the requirement for such publications, (B) notice to the Banco de la República concerning the external indebtedness represented by the Securities and (C) in accordance with External Resolution No. 7 of November 25, 2011, issued by the Junta Directiva del Banco de la República, the delivery of written information from the Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público to the Junta Directiva del Banco de la República regarding the proposed issuance of the Securities, each of which shall be effected on or prior to the Closing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that the Securities are held by a non-resident and non-domiciliary of the Republic;
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process; provided, that, except as provided under Article 177 of the Código Contencioso Administrativo of the Republic (which will be abrogated by Law 1437 of 2011, effective as of July 2, 2012), which does not override Articles 684 or 513 of the Código de Procedimiento Civil and Article 19 of Decree 111 of January 15, 1996 of the Republic, the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Fiscal Agency Agreement and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Fiscal Agency Agreement and the Securities as provided in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 16 of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur”, subject to the provisions of Article 693 of the Código de Procedimiento Civil which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic and subject to compliance with the provisions of Article 694 of the Código de Procedimiento Civil. The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus, as amended or supplemented, and their filing with the Commission have been duly authorized by and on behalf of the Republic, and the Registration Statement, as amended, has been duly executed by and on behalf of the Republic, and the information in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, stated on the authority of public officials of the Republic has been stated in their official capacities thereunto duly authorized;
(xvii) The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Fiscal Agency Agreement, insofar as matters of Colombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Company has been duly incorporated and is validly existing as a corporation in good standing under Registration Statement, at the laws respective times each part became effective, contained an untrue statement of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on fact or omitted to state a material fact required to be stated therein or necessary to make the Company and its subsidiaries, taken as a wholestatements therein not misleading;
(B) insofar No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof 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 to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(C) No information has come to such counsel’s attention that causes such counsel to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in 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 the circumstances under which they were made, not misleading. Such counsel may state that he or she is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Disclosure PackageProspectus (except to the extent expressly set forth in (xvii) above) and that such counsel makes no representation that such counsel has independently verified the accuracy, the statements contained in the Final Prospectus under the caption “Description completeness and fairness of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Actexcept as aforesaid), and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, to such counsel’s knowledgeopinions referred to in this subsection (b) are limited to matters of Colombian law and, insofar as the terms opinion required by this subsection (b) is affected by matters of any Material AgreementsUnited States or New York law, or any material decree or regulation known to such counsel to it may be applicable to given in reliance upon the Company of any U.S. federal or California or Delaware court,opinion required b
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time, as date hereof and each applicable Time of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing DateDelivery, to the accuracy in all material respects of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final ProspectusProspectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; any final term sheet contemplated by Section 5(a) hereof, or and any supplement theretoother material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed in with the manner and Commission within the applicable time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, Statement or any notice that would prevent its use, as amended from time to time, part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or threatenedthreatened 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 Company shall have furnished to the RepresentativesRepresentatives a certificate, dated each applicable Time of Delivery, of the Company, signed by the principal financial or accounting officer of the Company, to the effect that, to the best of his knowledge after reasonable investigation:
(i) the opinion The representations and warranties of the General CounselCompany in this Agreement are true and correct in all material respects on and as of the applicable Time of Delivery with the same effect as if made on the applicable Time of Delivery and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the applicable Time of Delivery, an Associate General Counsel in all material respects;
(ii) No stop order suspending the effectiveness of the Registration Statement or a 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 Company 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 Company’s unsecured debt securities or preferred stock as described in Section 7(i)(i) and (B) no announcement has been made with respect to any rating accorded the Company’s unsecured debt securities or preferred stock or the Securities as described in Section 7(i)(ii).
(c) The Company shall have furnished to the Underwriters the opinion, dated each applicable Time of Delivery, of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Esq., Senior Vice President and Deputy General Counsel of the Company, or an outside counsel which opinion shall be limited to the federal laws of the United States and the laws of the State of North Carolina (and, for the Companyavoidance of doubt, dated shall not extend to the Closing Date, substantially laws of any jurisdiction other than the United States with respect to any matter appearing under the caption “Underwriting” in the Pricing Prospectus or Prospectus) to the effect that:
(Ai) the The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of DelawareNorth Carolina, with full corporate power and authority under such laws to own its properties and to conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken as a wholeProspectus;
(Bd) insofar as The Securities being delivered to the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description Underwriters at such Time of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) 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 obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law); and the Securities Delivery have been duly authorized and, when executed issued and authenticated 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 Company’s Articles of Incorporation, as amended to such Time of Delivery, including the Amendment; and the shares of Common Stock initially issuable upon conversion of the Securities have been duly authorized and reserved for issuance, when issued in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this AgreementSecurities, will be legalduly and validly issued, valid fully paid and binding obligations nonassessable, and will have the rights set forth in such Articles of Incorporation, as amended to the date such shares of Common Stock are issued upon the conversion of the Company enforceable against Securities, including the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);Amendment.
(Di) The Company has all corporate power and authority necessary to execute and deliver this Agreement and the Registration Statement Securities and any amendments thereto have become effective under the Acthas all such power and authority to perform its obligations hereunder and thereunder; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization; the execution, approval delivery and performance of this Agreement and the Securities by the Company and compliance with the provisions hereof and thereof by the Company, including the issuance of Common Stock upon conversion of the Securities in accordance with the Amendment, will not constitute a breach of or default under, the corporate charter or by-laws of the Company, or any material agreement, indenture or other action byinstrument relating to indebtedness for money borrowed known to such counsel to which the Company 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 Company or any property of the Company, which breach or default would be reasonably likely to have a material adverse effect on the Company and its subsidiaries taken as a whole; and to the best of such counsel’s knowledge, no notice toconsent, consent of, authorization or order of, or filing or registration with, any U.S. federal court or California governmental agency or Delaware governmental authority or agency is required for the consummation execution, delivery and performance of this Agreement and the Securities by the Company, including the issuance of Common Stock upon conversion of the transactions contemplated hereinSecurities in accordance with the Amendment, except such as may be required under applicable state securities or “blue sky” laws or as have been obtained duly made or obtained;
(ii) The Amendment has been duly filed with the Secretary of State of the State of North Carolina in accordance with the North Carolina Business Corporation Act and with all other governmental authorities where such filing is required in order to be effective under North Carolina law;
(iii) The Securities and the ActCommon Stock conform in all material respects to the descriptions thereof in the Pricing Disclosure Package and Prospectus; and
(iv) The Registration Statement, the Exchange Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to such Time of Delivery (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 paragraph (v) of this Section 7(c), he has no reason to believe (i) that any part of the Registration Statement or any further amendment thereto made by the Company prior to such Time of Delivery (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 (other than the financial statements and other financial data contained therein, as to which such counsel need express no opinion), 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 applicable Time of Delivery, the Prospectus or any further amendment or supplement thereto made by the Company prior to the applicable Time of Delivery (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. As to matters governed by New York law, ▇▇. ▇▇▇▇▇▇▇▇ may rely upon the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP delivered pursuant to Section 7(d).
(e) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, shall have furnished to the Underwriters an opinion, dated each applicable Time of Deliver to the effect that:
(i) The applicable Securities have been duly authorized and, upon payment and delivery in accordance with the Underwriting Agreement, will be validly issued, fully paid and non-assessable.
(ii) This Agreement has been duly authorized, executed and delivered by the Company.
(iii) The statements made in the Pricing Prospectus and the Prospectus under the caption “Description of the Series L Preferred Stock”, insofar as they purport to constitute summaries of the terms of the Preferred Stock, constitute accurate summaries of the terms of such Preferred Stock in all material respects.
(iv) The statements made in the Pricing Prospectus and the Prospectus under the heading “Certain U.S. Federal Income Tax Considerations,” 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.
(v) The statements made in the Pricing Prospectus and the Prospectus under the caption “Certain ERISA Considerations”, insofar as they purport to constitute summaries of the terms of the statutes, rules and regulations thereunder, constitute accurate summaries of the terms of such statutes, rule and regulations in all material respects.
(vi) 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 applicable Securities by the Company pursuant to this Agreement except for the registration under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the blue sky state securities or Blue Sky laws of any jurisdiction in connection with the purchase and distribution of the Securities and such other approvals (specified in such opinion) as have been obtained; andby the Underwriters. As to matters governed by North Carolina law, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely upon the opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Esq., delivered pursuant to Section 7(c).
(Gf) none The Representatives shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated each applicable Time of Delivery, with respect to such matters as the Representatives may reasonably require. As to matters governed by North Carolina law, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely upon the opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Esq., Senior Vice President and Deputy General Counsel of the issue Company, delivered pursuant to Section 7(c).
(g) On the date hereof prior to the execution of this Agreement and sale each applicable Time of Delivery, KPMG LLP, as independent accountants of the SecuritiesCompany, shall have furnished to the Representatives a letter, dated on such date and in form and substance reasonably 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 or incorporated by reference into the Prospectus, and confirming that they are independent accountants within the meaning of the Act and the Exchange Act, and the respective applicable published rules and regulations of the Commission thereunder. On the date hereof prior to the execution of this Agreement, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the consummation of any other Controller and Principal Accounting Officer of the transactions herein contemplated or Company, shall have furnished to you a letter, dated the fulfillment date of delivery thereof, in form and substance reasonably satisfactory to the terms hereof will conflict withRepresentatives with respect to the matters set forth on Annex A hereto.
(h) Subsequent to the Applicable Time, result in a breach ofthere shall not have occurred any change, or constitute any development involving a default underprospective change, in or affecting the charter financial position, long-term debt, stockholders’ equity or by-laws results of operations of the Company orand its consolidated subsidiaries that the Representatives conclude, after consultation with the Company, is so material and adverse as to make it impractical or inadvisable to proceed with the public offering or the delivery of the Securities as contemplated by the Prospectus.
(i) The Company shall have furnished to the Representatives such counselfurther information, certificates and documents as they may reasonably request prior to each applicable Time of Delivery.
(j) On or after the Applicable Time, (i) no downgrading shall have occurred in the rating accorded the Company’s knowledgeunsecured debt securities or preferred stock by any “nationally recognized statistical rating organization”, as that term is defined by the terms Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any Material Agreementsof the Company’s unsecured debt securities or preferred stock.
(k) The Company shall have complied with the provisions of the first sentence of Section 5(e) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement.
(l) Application to list the shares of Common Stock issuable upon conversion of the Securities shall have been duly filed with the New York Stock Exchange. If any of the conditions specified in this Section 7 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 decree respects reasonably satisfactory in form and substance to the Representatives and their counsel, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or regulation known to at any time prior to, such counsel to Time of Delivery by the Representatives. Notice of such cancellation shall be applicable given to the Company of any U.S. federal in writing or California by telephone or Delaware court,telegraph confirmed in writing.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Execution Timethough made on, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date hereof and (including the filing of any document incorporated by reference thereinii) on, and as of though made on, the Closing Date, to the accuracy in all material respects of the statements of the Company Republic made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Final ProspectusPrior to the Closing Date, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus 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, or any notice that would prevent its use, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) of this Agreement; and any final term sheet contemplated by Section 4(a) hereof, and any other material required to be filed by the Republic 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.
(b) The Company Head or Acting Head of the Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyRepresentatives such counsel’s written opinion, dated the Closing Date, substantially to the effect that:
(i) The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Republic and the Agreements constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(iv) The Securities have been duly authorized, executed, issued and delivered by the Republic in accordance with the Indenture, and, assuming due authentication and delivery by the Trustee, the Securities constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms entitled to the benefits provided by the Indenture;
(v) The obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Securities) of the Republic that will rank without any preference among themselves and equal in right of payment with all other present and future unsecured and unsubordinated External Indebtedness of the Republic;
(vi) There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of any of the Agreements, the issue of the Securities as contemplated herein and in the Prospectus, or the performance or observance by the Republic of any of the terms of the Agreements or the Securities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the due execution, delivery and performance by the Republic of any of the Agreements or the Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for, (I) the relevant portions of Law 80 of October 28, 1993, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999 (III) Law 533 of November 11, 1999, (IV) Law 781 of December 20, 2002, (V) Law 1366 of December 21, 2009, (VI) Law 1624 of April 29, 2013, (VII) Law 1771 of December 30, 2015, (VIII) Law 2073 of December 31, 2020, (IX) Decree No. 1068 of May 26, 2015, (X) CONPES Document No. 4108 Departamento Nacional de Planeación, Ministerio de Hacienda y Crédito Público, dated November 22, 2022; (XI) evidence of publication of this Agreement in the Sistema Electrónico de Contratación Pública SECOP of the Republic, (XII) Authorization by Act of the Comisión Interparlamentaria de Crédito Público adopted in its meeting held on June 14, 2023 and (XIII) Resolution No. 2803 dated November 7, 2023 of the Ministerio de Hacienda y Crédito Público (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not necessary that any Agreement or the Securities be registered, recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General or Acting Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of Resolution No. 2803 dated November 7, 2023 issued by Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic, (B) filing of information before the Colombian Central Bank (Banco de la República) of public external indebtedness report on Form No. 6 (Formulario 6), resulting from the issuance of the Securities under the Indenture and (C) the publication of this Agreement in the Sistema Electrónico de Contratación Pública-SECOP of the Republic, to satisfy the requirement for such publications, each of which shall be effected on or prior to the Closing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that the Securities are held by a non-resident and non-domiciliary of the Republic;
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process, subject to the terms, conditions, limitations or exceptions under (i) Articles 192, 195, 298 and 299 of Law 1437 of 2011 (Código de Procedimiento Administrativo y de lo Contencioso Administrativo) as amended by Articles 80, 81 and 87 of Law 2080 of 2021; and (ii) Articles 593, 594 and 595 et al of Law 1564 of 2012 (Código General del Proceso); and Article 19 of Decree 111 of January 15, 1996, pursuant to which the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Indenture and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Indenture and the Securities as provided in Section 15 hereof, Section 9.7(a) of the Indenture and Section 16(a) of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur,” subject to the provisions of (i) Article 605 (et al) of Law 1564 of 2012 (Código General del Proceso), which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic; and (ii) subject to compliance with the provisions of Articles 606 and 607 of Law 1564 of 2012 (Código General del Proceso). The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic other than those governing judicial procedures, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly legalized copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus, as amended or supplemented, and their filing with the Commission have been duly authorized by and on behalf of the Republic, and the Registration Statement, as amended, has been duly executed by and on behalf of the Republic, and the information in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, stated on the authority of public officials of the Republic has been stated in their official capacities thereunto duly authorized;
(xvii) The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Indenture, insofar as matters of Colombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Company has been duly incorporated and is validly existing as a corporation in good standing under Registration Statement, at the laws respective times each part became effective, contained an untrue statement of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on fact or omitted to state a material fact required to be stated therein or necessary to make the Company and its subsidiaries, taken as a wholestatements therein not misleading;
(B) insofar No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof 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 to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(C) No information has come to such counsel’s attention that causes such counsel to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in 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 the circumstances under which they were made, not misleading. Such counsel may state that he or she is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Disclosure PackageProspectus (except to the extent expressly set forth in (xvii) above) and that such counsel makes no representation that such counsel has independently verified the accuracy, the statements contained in the Final Prospectus under the caption “Description completeness and fairness of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Actexcept as aforesaid), and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, to such counsel’s knowledgeopinions referred to in this subsection (b) are limited to matters of Colombian law and, insofar as the terms of any Material Agreements, or any material decree or regulation known to such counsel to be applicable to the Company of any U.S. federal or California or Delaware court,opinion required by this subsection (b) is affecte
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Execution Timethough made on, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date hereof and (including the filing of any document incorporated by reference thereinii) on, and as of though made on, the Closing Date, to the accuracy in all material respects of the statements of the Company Republic made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Final ProspectusPrior to the Closing Date, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus 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, or any notice that would prevent its use, as amended from time to time, or any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; and the Prospectus shall have been filed pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) of this Agreement.
(b) The Company Head or Acting Head of the Legal Affairs Group of the Dirección General de Crédito Público of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the CompanyRepresentatives such counsel’s written opinion, dated the Closing Date, substantially to the effect that:
(i) The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Republic and the Agreements constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(iv) The Securities have been duly authorized, executed, issued and delivered by the Republic in accordance with the Fiscal Agency Agreement, and, assuming due authentication and delivery by the Fiscal Agent, the Securities constitute legal, valid and binding obligations of the Republic enforceable in accordance with their terms;
(v) The obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Securities) of the Republic that will rank equal in right of payment with all other present and future unsecured and unsubordinated External Indebtedness of the Republic;
(vi) There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of any of the Agreements, the issue of the Securities as contemplated herein and in the Prospectus, or the performance or observance by the Republic of any of the terms of the Agreements or the Securities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the due execution, delivery and performance by the Republic of any of the Agreements or the Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for (I) Law 533 of November 11, 1999, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999, (III) the relevant portions of Law 80 of October 28, 1993, (IV) Decree No. 2681 of December 29, 1993, (V) authorization by Acts of the Comisión Interparlamentaria de Crédito Público adopted in its meetings held on June 20, 2002 and December 23, 2002, (VI) Resolution No. 055 dated January 20, 2003 of the Ministerio de Hacienda y Crédito Público, (VII) approval No. 3156 dated March 5, 2002, as amended by approval No. 3205 dated December 4, 2002 of the Consejo Nacional de Política Económica y Social (“CONPES”), (VIII) approval No. 3176 dated July 15, 2002 of the CONPES, (IX) approval No. 3209 dated December 19, 2002 of the CONPES, and (X) External Resolution No. 2 of 2002 and External Resolution No. 6 of December 23, 2002, issued by the Board of Directors of the Central Bank (each of which shall be listed in such counsel’s written opinion and copies of which shall be furnished to counsel to the Underwriters on or prior to the Closing Date);
(viii) To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not necessary that any Agreement or the Securities be registered, recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General of Public Credit of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 055 of January 20, 2003, issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) a summary of the Agreements in the Diario Unico de Contratación Pública of the Republic, to satisfy the requirement for such publications, (B) notice of the external indebtedness represented by the Securities to the Banco de la República and (C) in accordance with External Resolution No. 2 of June 7, 2002 and External Resolution No. 6 of December 23, 2002, issued by the Junta Directiva del Banco de la República, the delivery of written information from the Director General of Public Credit of the Ministerio de Hacienda y Crédito Público to the Junta Directiva del Banco de la República regarding the proposed issuance of the Securities, each of which shall be effected on or prior to the Closing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that, the Securities are held by a non-resident and non-domiciliary of the Republic.
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process; provided, that, except as provided under Article 177 of the Código Contencioso Administrativo, which does not override Articles 684 or 513 of the Código de Procedimiento Civil, of the Republic, the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 15 hereof and in the Fiscal Agency Agreement and the Securities and the appointment of the Authorized Agent in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 17 of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 17 of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Fiscal Agency Agreement and the Securities as provided in Section 14 hereof, Section 17 of the Fiscal Agency Agreement and Section 16 of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 17 of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur”, subject to the provisions of Article 693 of the Código de Procedimiento Civil which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic and subject to compliance with the provisions of Article 694 of the Código de Procedimiento Civil. The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus, as amended or supplemented, and their filing with the Commission have been duly authorized by and on behalf of the Republic, and the Registration Statement, as amended, has been duly executed by and on behalf of the Republic, and the information in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, stated on the authority of public officials of the Republic has been stated in their official capacities thereunto duly authorized;
(xvii) The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Fiscal Agency Agreement, insofar as matters of Colombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Company has been duly incorporated and is validly existing as a corporation in good standing under Registration Statement, at the laws time it became effective, contained an untrue statement of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on fact or omitted to state a material fact required to be stated therein or necessary to make the Company and its subsidiaries, taken as a whole;statements therein not misleading; and
(B) insofar No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof 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 to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel may state that he or she is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Disclosure PackageProspectus (except to the extent expressly set forth in (xvii) above) and that such counsel makes no representation that such counsel has independently verified the accuracy, completeness and fairness of such statements (except as aforesaid), and that such counsel’s opinions referred to in this subsection (b) are limited to matters of Colombian law and, insofar as the statements contained opinion required by this subsection (b) is affected by matters of United States or New York law, it may be given in reliance upon the Final Prospectus under opinion required by subsection (c) of this Section 6 and that, insofar as the caption “Description foregoing opinions relate to the legality, validity, binding effect or enforceability of any agreement or obligation of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the IndentureRepublic, such statements present in all material respects an accurate summary of counsel has assumed that each party to such provisions;
(C) agreement or obligation other than the Indenture Republic has been duly authorized, executed and delivered by satisfied those legal requirements that are applicable to it to the Company, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding extent necessary to make such agreement or obligation enforceable against it.
(c) Cleary, Gottlieb, S▇▇▇▇ & H▇▇▇▇▇▇▇, United States counsel to the Company in accordance with its terms Republic, shall have furnished to the Representatives their written opinion, dated the Closing Date, to the effect that:
(subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law); and i) Assuming that the Securities have been duly authorized andauthorized, when executed and authenticated in accordance with the provisions of the Indenture executed, authenticated, issued and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Actpayment therefor, the Exchange Act and the Trust Indenture 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 and such other approvals (specified in such opinion) as have been obtained; and
(G) none of the issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or 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, to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to be applicable to the Company of any U.S. federal or California or Delaware court,va
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The respective rights and obligations of the Underwriters to purchase the Securities as provided in this Agreement shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) hereof and as of the Closing Date, to the accuracy in all material respects of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditionsconditions with respect to the Offered Certificates:
(a) The Final Prospectus, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required by Rule 433; and no No stop order suspending the effectiveness of the Registration Statement, or any notice that would prevent its use, as amended from time to time, Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened; and the Preliminary Prospectus and the Prospectus and, to the extent required, all other Time of Sale Information shall have been filed with the Commission within the time period prescribed by the Commission; and any Free Writing Prospectuses required to be filed by the Company under Section 9(e) hereof shall have been filed or transmitted for filing with the Commission in accordance with Rule 433 under the Securities Act, to the extent required to be filed thereunder.
(b) The Company shall have furnished delivered to the Representatives:
(i) the opinion of the General Counsel, an Associate General Counsel or Underwriters a Deputy General Counsel of the Company, or an outside counsel for the Companycertificate, dated the Closing Date, substantially executed by an officer of the Company, to the effect that the signatory of such certificate has carefully examined the Registration Statement, the Time of Sale Information, this Agreement and the Prospectus and that:
: (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, (ii) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and Final Prospectus as amended or supplemented, except where such failure would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(B) insofar as the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) complied with all the Indenture has been duly authorized, executed agreements and delivered by satisfied all the Company, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with conditions on its terms (subject part to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to be performed or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity satisfied on 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 Underwriters in accordance with the terms of this Agreement, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; prior to the best knowledge of such counselClosing Date, (iii) no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened, and (iv) nothing has come to his/her attention that would lead him/her to believe that the Time of Sale Information, as of the Time of Sale, or are pending the Prospectus, as of the date of the Prospectus and as of the Closing Date, contained or contemplated contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Time of Sale Information, when read in conjunction with other Time of Sale Information), in the light of the circumstances under the Act;which they were made, not misleading.
(Ec) this Agreement has been duly authorizedThe Company shall have furnished or caused to be furnished to the Underwriters a good standing certificate regarding the Company from the Secretary of State of the State of Delaware, executed dated not earlier than 30 days prior to the Closing Date.
(d) The Company shall have furnished or caused to be furnished to the Underwriters an officer’s certificate, dated the Closing Date and delivered signed by the Manager of Cantor Commercial Real Estate Sponsor Holdings, LLC, which indirectly controls the Company;, that includes an incumbency certification with respect to the Company. Such Manager’s certificate shall be accompanied by, among other things, true and complete copies (certified as such by the secretary or an assistant secretary of the Company) of the organizational documents of the Company, as in effect on the Closing Date, and any required affiliate consent relating to the transactions contemplated in this Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and Servicing Agreement.
(Fe) no authorizationThe Underwriters shall have received from ▇▇▇▇▇▇, approval or other action ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and no notice to, consent on certificates or other documents furnished by officers of, order the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York and the federal law of the United States of America.
(f) The Underwriters shall have received from ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, its letter, dated as of the Closing Date, relating to the Preliminary Prospectus, as of the Time of Sale, and to the Prospectus, as of the date of the Prospectus and as of Closing Date, that is satisfactory in form and substance to counsel for the Underwriters.
(g) The Underwriters shall have received from in-house counsel for the Company, a written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, or filing withthe parties to this Agreement, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the transactions contemplated herein, except such as have been obtained under the ActState of New York, the Exchange General Corporation Law of the State of Delaware, the Delaware Revised Uniform Limited Partnership Act and the Trust Indenture Act Delaware Limited Liability Company Act.
(h) The Underwriters shall have received from counsel for each of the Master Servicer, the Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, with respect to such matters as may be required under the blue sky laws Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the Underwriters, which will include an opinion as to the compliance of the disclosure in the Preliminary Prospectus and the Prospectus with respect to each such party with the requirements of Regulation AB and that such disclosure in the Preliminary Prospectus, as of the Time of Sale, and in the Prospectus, as of its date and as of the Closing Date, does not contain an untrue statement of any jurisdiction material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any such opinions shall be addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the Underwriters may rely upon them.
(i) The Underwriters shall have received from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the Underwriters, a written opinion, dated the Closing Date and satisfactory in form and substance to the Underwriters.
(j) The Underwriters shall have received (i) from KPMG LLP (“KPMG”) and Ernst & Young LLP, certified public accountants, a copy of the Accountant’s Due Diligence Report and (ii) from KPMG letters dated the Time of Sale and the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters.
(k) The Offered Certificates listed on Schedule I hereto shall have been rated as indicated in the Time of Sale Information by the rating agency or agencies indicated therein.
(l) The Underwriters shall have received from counsel to each Mortgage Loan Seller, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters.
(m) The Underwriters shall have received from counsel to each Mortgage Loan Seller a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the Underwriters, which will include an opinion as to the compliance of the disclosure in the Preliminary Prospectus and the Prospectus with respect to each such party with the requirements of Regulation AB and that such disclosure in the Preliminary Prospectus, as of the Time of Sale, and in the Prospectus, as of its date and as of the Closing Date, does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any such opinions shall be addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the Underwriters may rely upon them.
(n) The Underwriters shall have received from each Mortgage Loan Seller an Officer’s Certificate as set forth in Section 8(b) of each Mortgage Loan Purchase Agreement, each in form and substance satisfactory to counsel for the Underwriters.
(o) All proceedings in connection with the purchase transactions contemplated by this Agreement, and distribution of all documents incident hereto and thereto, shall be satisfactory in form and substance to the Securities Underwriters and counsel for the Underwriters, and the Underwriters and counsel for the Underwriters shall have received such other approvals (specified in such opinion) additional information, certificates, opinions and documents as have been obtained; andthey may reasonably request.
(Gp) none of Subsequent to the issue and sale of the Securitiesdate hereof, the consummation of there shall not have occurred any other of the transactions herein contemplated or the fulfillment of the terms hereof will conflict with, result in a breach ofchange, or constitute any development involving a default underprospective change, in or affecting the charter business or by-laws properties of the Company oror a Mortgage Loan Seller (including any of the Mortgage Loans) that such Underwriter concludes, in the reasonable judgment of such Underwriter, materially impairs the investment quality of the Offered Certificates so as to such counsel’s knowledgemake it impractical or inadvisable to proceed with the offering or the delivery of the Offered Certificates as contemplated by the Preliminary Prospectus and the Prospectus.
(q) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled on, or at any time prior to, the terms Closing Date by the Underwriters. Notice of any Material Agreements, or any material decree or regulation known to such counsel to cancellation shall be applicable given to the Company of any U.S. federal in writing, by telephone or California by either telegraph or Delaware court,telecopier confirmed in writing.
Appears in 1 contract
Sources: Underwriting Agreement (CF 2019-Cf3 Mortgage Trust)