Conditions of Obligations of Agent. The obligation of the Agents, as agents of the Company, under this Agreement to solicit offers to purchase the Securities, the obligation of any person who has agreed to purchase Securities to make payment for and take delivery of Securities, and the obligation of any Agent to purchase Securities pursuant to any Purchase Agreement, shall be subject to the accuracy, on and as of the Representation Date(s) applicable to the purchase of such Securities, of the representations and warranties of the Issuers contained herein, to the accuracy of the statements of the Issuers made in any certificates pursuant to the provisions hereof, to the performance by the Issuers of their obligations hereunder and to the following additional conditions: (a) If filing of the Prospectus, or any amendment or supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such amendment or supplement (including the Pricing Supplement), will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have furnished to the Agents the opinion of Michael Touff, Senior Vice President and General Counsel of the Compa▇▇, ▇▇▇ ▇▇▇▇▇h Fretz, Secretary and Corporate Counsel of the Company, dated t▇▇ ▇▇▇▇▇▇▇▇▇ent Date and addressed to the Agents, to the effect that: (i) each of the Company and its subsidiaries has been duly organized and is validly existing in good standing under the laws of the jurisdiction in which it is chartered or organized with full power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business and is in good standing under the laws of each jurisdiction which requires such qualification, except in each case as would not, singly or in the aggregate, have a Material Adverse Effect, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto subsequent to the Commencement Date); (ii) all the outstanding shares of capital stock of each significant subsidiary of the Company (as defined by Rule 1-02 of Regulation S-X) (individually a "Subsidiary" and collectively the "Subsidiaries") have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus or as may be required by applicable law, all outstanding shares of capital stock of the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance; (iii) the Company's authorized equity capitalization is as set forth in the Prospectus; (iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in 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; (v) 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; (vi) neither the execution and delivery of this Agreement nor the Indentures, the issue and sale of the Securities nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, (x) the charter or by-laws of the Company or any of its subsidiaries, (y) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or any of its subsidiaries is a party or bound or to which its or their property is subject, or (z) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its subsidiaries or any of its or their properties, except, in the case of clause (y) or (z), as would not, singly or in the aggregate, have a Material Adverse Effect; and (vii) 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 as to matters involving the application of laws of any jurisdiction other than the States of New York or Colorado, the Delaware General Corporation Law or the Federal laws of the United States, to the extent he deems proper and 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 Agents. References to the Prospectus in this paragraph (b) include any supplements thereto at the Commencement Date.
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Conditions of Obligations of Agent. The obligation of the Agents, as agents of the Company, under this Agreement to solicit offers to purchase the Securities, the obligation of any person who has agreed to purchase Securities to make payment for and take delivery of Securities, and the obligation of any Agent to purchase Securities pursuant to any Purchase Agreement, shall be subject to the accuracy, on and as of the Representation Date(s) applicable to the purchase of such Securities, of the representations and warranties of the Issuers contained herein, to the accuracy of the statements of the Issuers made in any certificates pursuant to the provisions hereof, to the performance by the Issuers of their obligations hereunder and to the following additional conditions:
(a) If filing of the Prospectus and any then applicable Permitted Free Writing Prospectus, if any, or any amendment or supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any then applicable Permitted Free Writing Prospectus, if any, and any such amendment or supplement (including the Pricing Supplement), will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have has previously furnished to the Agents the opinion of Michael TouffM▇▇▇▇▇▇ ▇▇▇▇▇, Senior Vice President and General Counsel of the CompaCompany, and J▇▇, ▇▇▇ ▇▇▇▇▇h Fretz, Secretary and Corporate Counsel of the Company, dated t▇▇ ▇▇▇▇▇▇▇▇▇ent the Commencement Date and addressed to the Agents, to the effect that:
(i) each of the Company and its subsidiaries has been duly organized and is validly existing in good standing under the laws of the jurisdiction in which it is chartered or organized with full power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business and is in good standing under the laws of each jurisdiction which requires such qualification, except in each case as would not, singly or in the aggregate, have a Material Adverse Effect, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto subsequent to the Commencement Date);
(ii) all the outstanding shares of capital stock of each significant subsidiary of the Company (as defined by Rule 1-02 of Regulation S-X) (individually a "“Subsidiary" ” and collectively the "“Subsidiaries"”) have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus or as may be required by applicable law, all outstanding shares of capital stock of the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company's ’s authorized equity capitalization is as set forth in the Prospectus;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in 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;
(v) 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;
(vi) neither the execution and delivery of this Agreement nor the Indentures, the issue and sale of the Securities nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, (x) the charter or by-laws of the Company or any of its subsidiaries, (y) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or any of its subsidiaries is a party or bound or to which its or their property is subject, or (z) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its subsidiaries or any of its or their properties, except, in the case of clause (y) or (z), as would not, singly or in the aggregate, have a Material Adverse Effect; and
(vii) 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 as to matters involving the application of laws of any jurisdiction other than the States of New York or Colorado, the Delaware General Corporation Law or the Federal laws of the United States, to the extent he deems proper and 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 Agents. References to the Prospectus in this paragraph (b) include any supplements thereto at the Commencement Date.
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