Conditions of the Agents’ Obligations. The obligation of the Agents, as the agents of the Company, under this Agreement to solicit offers to purchase the Notes, the obligation of any person who has agreed to purchase Notes to make payment for and take delivery of the Notes, and the obligation of any Agent to purchase the Notes pursuant to any Purchase Agreement, is subject to the accuracy, on each Representation Date, of the representations and warranties of the Company contained in this Agreement, to the accuracy of the statements of the Company's officers made in any certificate furnished pursuant to the provisions of this Agreement, to the performance by the Company of its obligations under this Agreement and to each of the following additional terms and conditions: (a) The Prospectus as amended or supplemented (including the Pricing Supplement) with respect to the Notes 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 and in accordance with Section 3(a) and 3(k); no stop order suspending the effectiveness of the Registration Statement or any part thereof nor any order directed to any document incorporated by reference in any Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or any Prospectus or otherwise shall have been complied with. No order suspending the sale of the Notes in any jurisdiction designated by the Agents pursuant to Section 3(h) hereof shall have been issued, and no proceeding for that purpose shall have been initiated or threatened. (b) No Agent shall have discovered and disclosed to the Company that the Registration Statement or any Prospectus or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Agents, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, each Purchase Agreement, if any, the Indenture, the Notes, the Registration Statement and each Prospectus, and all other legal matters relating to this Agreement and each Purchase Agreement, if any, and the transactions contemplated hereby and thereby shall be satisfactory in all material respects to counsel for the Agents, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) Sidley & Austin, counsel to the Company, or other counsel to the Company satisfactory to the Agents, shall have furnished to the Agents their written opinion, as counsel to the Company, addressed to the Agents and dated the Closing Date, in form and substance acceptable to the Agents to the effect that: (i) The Indenture has been duly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act, and, assuming due authorization, execution and delivery 10 thereof by the Trustee, constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms; (ii) The Notes have been duly authorized by the Company, and, when the terms of a Note and of its issuance and sale have been duly established in accordance with the Indenture, this Agreement and the applicable Purchase Agreement, if any, and when such Note has been duly executed, authenticated, issued and delivered in the manner provided in the Indenture and paid for in accordance with this Agreement and the applicable Purchase Agreement, if any, such Note will be duly and validly issued and delivered by the Company and will constitute a valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms and entitled to the benefits of the Indenture; (iii) The Registration Statement was declared effective under the Securities Act as of the date specified in such opinion; any required filing of the Prospectus pursuant to Rule 424(b) of the Rules and Regulations has been made within the time period prescribed by the Rules and Regulations; and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and, to the knowledge of such counsel, no proceeding for that purpose is pending or threatened by the Commission; (iv) At the Effective Time, the Registration Statement (including all documents incorporated by reference therein) complied, and on the date of this Agreement, the Prospectus (including all documents incorporated by reference therein) complies, and any further amendments or supplements thereto made by the Company on or prior to the date of such opinion comply (other than, in each case, the financial statements and related schedules and other financial and statistical data included or incorporated by reference therein and Form T-1 under the Trust Indenture Act, as to which such counsel need express no opinion) as to form in all material respects with the requirements of the Securities Act, the Exchange Act and the applicable rules and regulations under said Acts; (v) The Notes, the Indenture and the capital stock of the Company conform in all material respects to the descriptions thereof contained or incorporated by reference in the Registration Statement and the Prospectus; and the provisions of the contracts, agreements and instruments (as the same may be in effect on the Closing Date) summarized in the Prospectus, any supplement thereto or any document incorporated by reference therein, conform in all material respects to the descriptions thereof in the Prospectus, any supplement thereto or any document incorporated by reference therein; (vi) To such counsel's knowledge, there are no contracts or other documents which 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 so filed; (vii) This Agreement and each Purchase Agreement, if any, have been duly authorized by the Company, and this Agreement and each Purchase Agreement, if any, executed and delivered prior to or at the time of delivery of such opinion have been duly executed and delivered by the Company; (viii) The sale of the Notes by the Company, compliance by the Company with all of the provisions of this Agreement, each Purchase Agreement, if any, executed and delivered prior to or at the time of delivery of such opinion, the Indenture and the Notes and the consummation by the Company of the transactions contemplated hereby and thereby will not result in a breach or violation of any of the terms or provisions of, or constitute a default under, any agreement or instrument scheduled in such opinion (as in effect on the date of such opinion), and, except for the registration of the Notes under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Trust Indenture Act, the Exchange Act and applicable state or foreign securities laws in connection with the offer and sale of the Notes, no consent, approval, authorization or order of, or filing or registration with, any court or any governmental agency or body is required for the execution, delivery and performance of this Agreement or the applicable Purchase Agreement, if any, by the Company and the consummation by the Company of the transactions contemplated hereby; and
Appears in 1 contract
Conditions of the Agents’ Obligations. The obligation of the Agents, as the agents of the Company, under this Agreement to solicit offers to purchase the Notes, the obligation of any person who has agreed to purchase Notes to make payment for and take delivery of the Notes, and the obligation of any Agent to purchase the Notes pursuant to any Purchase Agreement, is subject to the accuracy, on each Representation Date, of the representations and warranties of the Company contained in this Agreement, to the accuracy of the statements of the Company's officers made in any certificate furnished pursuant to the provisions of this Agreement, to the performance by the Company of its obligations under this Agreement and to each of the following additional terms and conditions:
(a) The Prospectus as amended or supplemented (including the Pricing Supplement) with respect to the Notes 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 and in accordance with Section 3(a) and 3(k); no stop order suspending the effectiveness of the Registration Statement or any part thereof nor any order directed to any document incorporated by reference in any Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Company or the Agents, threatened by the Commission; and any request of additional information required by the Commission for inclusion of additional information to be included in the Registration Statement or any Prospectus or otherwise shall have been complied withso included. No order suspending the sale of the Notes in any jurisdiction designated by the Agents pursuant to Section 3(h) hereof shall have been issued, and no proceeding for that purpose shall have been initiated or, to the knowledge of the Company or the Agents, threatened.
(b) No Agent shall have discovered and disclosed to the Company on or prior to the Representation Date that the Registration Statement or any the Prospectus or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of the counsel for the Agents, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to necessary for the authorization, form authorization and validity of this Agreement, each any Purchase Agreement, if any, the Indenture, the Notes, the Registration Statement and each the Prospectus, and all other legal matters relating to this Agreement and each any Purchase Agreement, if any, Agreement and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Agents, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & Austin▇▇▇▇, counsel to the Company, or other counsel to the Company satisfactory to the Agents, shall have furnished to the Agents their written opinion, as counsel to the Company, addressed to the Agents and dated the Closing Date, in form and substance acceptable to the Agents to the effect that:
(i) The Indenture has been duly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act, and, assuming due authorization, execution and delivery 10 thereof by the Trustee, constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms;
(ii) The Notes have been duly authorized by the Company, and, when the terms of a Note and of its issuance and sale have been duly established in accordance with the Indenture, this Agreement and the applicable Purchase Agreement, if any, and when such Note has been duly executed, authenticated, issued and delivered in the manner provided in the Indenture and paid for in accordance with this Agreement and the applicable Purchase Agreement, if any, such Note will be duly and validly issued and delivered by the Company and will constitute a valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms and entitled to the benefits of the Indenture;
(iii) The Registration Statement was declared effective under the Securities Act as of the date specified in such opinion; any required filing of the Prospectus pursuant to Rule 424(b) of the Rules and Regulations has been made within the time period prescribed by the Rules and Regulations; and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and, to the knowledge of such counsel, no proceeding for that purpose is pending or threatened by the Commission;
(iv) At the Effective Time, the Registration Statement (including all documents incorporated by reference therein) complied, and on the date of this Agreement, the Prospectus (including all documents incorporated by reference therein) complies, and any further amendments or supplements thereto made by the Company on or prior to the date of such opinion comply (other than, in each case, the financial statements and related schedules and other financial and statistical data included or incorporated by reference therein and the Form T-1 under the Trust Indenture Act, as to which such counsel need express no opinion) as to form in all material respects with the requirements of the Securities Act, the Exchange Act and the applicable rules and regulations under said Acts;
(v) The Notes, the Indenture and the capital stock of the Company conform in all material respects to the descriptions thereof contained or incorporated by reference in the Registration Statement and the Prospectus; and the provisions of the contracts, agreements and instruments (as the same may be in effect on the Closing Date) summarized in the Prospectus, any supplement thereto or any document incorporated by reference therein, conform in all material respects to the descriptions thereof in the Prospectus, any supplement thereto or any document incorporated by reference therein;
(vi) To such counsel's knowledge, there are no contracts or other documents which 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 so filed;
(vii) This Agreement and each Purchase Agreement, if any, have been duly authorized by the Company, and this Agreement and each Purchase Agreement, if any, executed and delivered prior to or at the time of delivery of such opinion have been duly executed and delivered by the Company;
(viii) The sale of the Notes by the Company, compliance by the Company with all of the provisions of this Agreement, each Purchase Agreement, if any, executed and delivered prior to or at the time of delivery of such opinion, the Indenture and the Notes and the consummation by the Company of the transactions contemplated hereby and thereby will not result in a breach or violation of any of the terms or provisions of, or constitute a default under, any agreement or instrument scheduled in such opinion (as in effect on the date of such opinion), ; and, except for the registration of the Notes under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Trust Indenture Act, the Exchange Act and applicable state or foreign securities laws in connection with the offer and sale of the Notes, no consent, approval, authorization or order of, or filing or registration with, any court or any governmental agency or body is required for the execution, delivery and performance of this Agreement or the applicable Purchase Agreement, if any, by the Company and the consummation by the Company of the transactions contemplated hereby; and
(ix) The Company is not required to be registered, and is not regulated, as an "investment company," as such term is defined under the United States Investment Company Act of 1940. In addition, such counsel shall state that in the course of the preparation of the Registration Statement and the Prospectus, such counsel has considered the information set forth therein in light of the matters required to be set forth therein and that such counsel has participated in conferences with officers and representatives of the Company, including its independent public accountants and, with respect to the Prospectus, representatives of and counsel for the Agents, during the course of which the contents of the Registration Statement and the Prospectus and related matters were discussed and, although such counsel shall not have independently checked the accuracy or completeness of, or otherwise verified, and accordingly are not passing upon, and shall not assume responsibility for, the accuracy, completeness or fairness of the statements contained or incorporated by reference in the Registration Statement and the Prospectus (except as set forth in subparagraph (v) above), and that such counsel has relied as to materiality, to a large extent, upon the judgment of officers and representatives of the Company, as a result of such consideration and participation, nothing has come to the attention of such counsel which causes such counsel to believe that the Registration Statement as of its Effective Time or, if later, as of the date of the Company's most recent filing of an Annual Report on Form 10-K (including such Annual Report on Form 10-K), 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 Prospectus, as of the date of such opinion, includes an untrue statement of a material fact 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, in each case, such counsel need not express any belief as to the financial statements and related schedules and other financial and statistical data included or incorporated by reference in the Registration Statement or the Prospectus). In rendering such opinion, such counsel may (A) state that their opinion is limited to the federal laws of the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware, (B) rely as to matters of fact upon the representations contained in this Agreement and the certificates of officers of the Company and it subsidiaries and of public officials; provided that such counsel shall furnish copies thereof to the Agents and state that they believe that the Agents and they are justified in relying upon such certificates and (C) state that their opinions set forth in subparagraphs (A) and (B) above are subject to the qualification that the enforceability of the Company's obligations under the Indenture and the Notes may be limited by 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) or by an implied covenant of good faith and fair dealing.
(e) The General Counsel or other counsel of the Company shall have furnished to the Agents his written opinion, addressed to the Agents and dated the Closing Date, in form and substance satisfactory to the Agents to the effect that:
(i) The Company and each of its significant subsidiaries (as defined in Rule 405 under the Securities Act and listed in Annex 1(c)) have been duly incorporated and are validly existing as corporations in good standing under the general corporation laws of their respective jurisdictions of incorporation and have all corporate power and authority necessary to own or hold their respective properties and conduct the businesses in which they are engaged;
(ii) All of the issued and outstanding shares of capital stock of each significant subsidiary have been duly and validly authorized and issued and are fully paid, non-assessable and (except for directors' qualifying shares) owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(iii) To such counsel's knowledge, and other than as set forth or contemplated 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 are reasonably expected to have a material adverse effect on the business, properties, 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 by governmental authorities or by others;
(iv) The sale of the Notes by the Company and the compliance by the Company with all of the provisions of this Agreement, each Purchase Agreement, if any, executed and delivered prior to or at the time of delivery of such opinion and the Indenture, and the consummation of the transactions contemplated hereby and thereby will not (A) result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material indenture or loan agreement known to such counsel or (B) to the knowledge of such counsel, result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material, mortgage, deed of trust or other material agreement or instrument to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant 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 charter or by-laws of the Company or any significant subsidiary or 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 or assets (except that such counsel need express no opinion with respect to applicable state or foreign securities laws);
(v) To such counsel's knowledge, neither the Company nor any significant subsidiary (A) is in violation of its charter or by-laws, (B) is in default, and no event has occurred, which, with notice or lapse of time or both, would constitute a default, in the due performance or observance of any term, covenant or condition contained in any material indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject or (C) is in violation of any law, ordinance, governmental rule, regulation or court decree to which it or its property or assets may be subject or has failed to obtain any license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or to the conduct of its business except, in the case of clauses (B) and (C), for those defaults, violations or failures which, either individually or in the aggregate, are not reasonably expected to have a material adverse effect on the business, properties, financial position, stockholders' equity or results of operations of the Company and its subsidiaries taken as a whole; and
(vi) To such counsel's knowledge, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to include any securities owned or to be owned by such person in the securities registered pursuant to the Registration Statement or, except as described in the Prospectus or listed in Annex 1(f), to require the Company to file any other registration statement under the Securities Act (other than a registration statement on Form S-8) with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in any securities being registered pursuant to any other registration statement filed by the Company under the Securities Act. In rendering such opinion, such counsel may (i) state that his opinion is limited to the federal laws of the United States, the laws of the State of Nebraska and the General Corporation Law of the State of Delaware and (ii) rely as to matters of fact upon certificates of officers of the Company and its subsidiaries and of public officials; provided that such counsel s
Appears in 1 contract
Conditions of the Agents’ Obligations. The obligation obligations of the Agents, Agent as the agents of the Company, under this Agreement to solicit offers to purchase the Notes, the obligation of any person who has agreed to purchase Notes to make payment for and take delivery of the Notes, and the obligation of any Agent to purchase the Notes pursuant to any Purchase Agreement, is provided herein shall be subject to the accuracy, on each Representation Date, of the condition that all representations and warranties and other statements herein of the Company contained in this Agreementare materially true and correct, to the accuracy of the statements of the Company's officers made in any certificate furnished pursuant to the provisions of this Agreement, to the performance by condition that the Company shall have materially performed all of its obligations under this Agreement hereunder which are to be performed prior to the sale of the Common Shares and closing hereunder, and to each the satisfaction of the following additional terms and conditionsconditions on or before each Closing Date:
(a) The Prospectus as amended or supplemented (including the Pricing Supplement) with respect to the Notes 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 and in accordance with Section 3(a) and 3(k); no No stop order suspending the effectiveness offer and/or sale of the Registration Statement or any part thereof nor any order directed to any document incorporated by reference Common Shares in any Prospectus state shall have been issued and no proceeding for that purpose shall have been initiated or threatened by or, to the Commission; and any request knowledge of the Commission for inclusion of additional information in Company or the Registration Statement or Agent, threatened, by any Prospectus or otherwise shall have been complied with. No order suspending the sale of the Notes in any jurisdiction designated by the Agents pursuant to Section 3(h) hereof shall have been issued, and no proceeding for that purpose shall have been initiated or threatenedstate.
(b) No Agent shall have discovered and disclosed to the Company that the Registration Statement or any Prospectus or any amendment or supplement thereto contains an untrue statement of a fact whichAt each Closing Date, in the opinion of counsel for the Agents, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, each Purchase Agreement, if any, the Indenture, the Notes, the Registration Statement and each Prospectus, and all other legal matters relating to this Agreement and each Purchase Agreement, if any, and the transactions contemplated hereby and thereby shall be satisfactory in all material respects to counsel for the Agents, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Sidley & Austin, counsel deliver to the Company, or other counsel to the Company satisfactory to the Agents, shall have furnished to the Agents their Agent a written opinion, as counsel to statement of officers of the Company, addressed to the Agents and dated the Closing Date, in form and substance acceptable satisfactory to the Agents to the effect Agent certifying that:
, at that date, (i) The Indenture has been duly authorized, executed the representations and delivered by the Company and duly qualified under the Trust Indenture Act, and, assuming due authorization, execution and delivery 10 thereof by the Trustee, constitutes a valid and legally binding obligation warranties of the Company enforceable against the Company pursuant to Section 2 of this Agreement are true and correct in accordance with its terms;
all material respects, (ii) The Notes have been duly authorized by the Company, and, when Company has performed all of the terms obligations required of a Note and of its issuance and sale have been duly established in accordance with the Indenture, it pursuant to this Agreement and the applicable Purchase Agreement, if anyin all material respects, and when such Note has been duly executed, authenticated, issued and delivered in the manner provided in the Indenture and paid for in accordance with this Agreement and the applicable Purchase Agreement, if any, such Note will be duly and validly issued and delivered by the Company and will constitute a valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms and entitled to the benefits of the Indenture;
(iii) The Registration Statement was declared effective under the Securities Act as of the date specified in such opinion; any required filing of the Prospectus pursuant to Rule 424(b) of the Rules and Regulations has been made within the time period prescribed by the Rules and Regulations; and, to the knowledge of such counsel, no stop order suspending the effectiveness qualification or exemption of the Registration Statement has been issued and, Common Shares under any state securities law or preventing or purporting to the knowledge of such counsel, no proceeding for that purpose is pending or threatened by the Commission;
(iv) At the Effective Time, the Registration Statement (including all documents incorporated by reference therein) complied, and on the date of this Agreement, the Prospectus (including all documents incorporated by reference therein) complies, and any further amendments or supplements thereto made by the Company on or prior to the date of such opinion comply (other than, in each case, the financial statements and related schedules and other financial and statistical data included or incorporated by reference therein and Form T-1 under the Trust Indenture Act, as to which such counsel need express no opinion) as to form in all material respects with the requirements of the Securities Act, the Exchange Act and the applicable rules and regulations under said Acts;
(v) The Notes, the Indenture and the capital stock of the Company conform in all material respects to the descriptions thereof contained or incorporated by reference in the Registration Statement and the Prospectus; and the provisions of the contracts, agreements and instruments (as the same may be in effect on the Closing Date) summarized in the Prospectus, any supplement thereto or any document incorporated by reference therein, conform in all material respects to the descriptions thereof in the Prospectus, any supplement thereto or any document incorporated by reference therein;
(vi) To such counsel's knowledge, there are no contracts or other documents which 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 so filed;
(vii) This Agreement and each Purchase Agreement, if any, have been duly authorized by the Company, and this Agreement and each Purchase Agreement, if any, executed and delivered prior to or at the time of delivery of such opinion have been duly executed and delivered by the Company;
(viii) The sale of the Notes by the Company, compliance by the Company with all of the provisions of this Agreement, each Purchase Agreement, if any, executed and delivered prior to or at the time of delivery of such opinion, the Indenture and the Notes and the consummation by the Company of the transactions contemplated hereby and thereby will not result in a breach or violation of any of the terms or provisions of, or constitute a default under, any agreement or instrument scheduled in such opinion (as in effect on the date of such opinion), and, except for the registration of the Notes under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Trust Indenture Act, the Exchange Act and applicable state or foreign securities laws in connection with prevent the offer and sale of the NotesCommon Shares has been issued, and no consent, approval, authorization proceedings therefor are pending or order of, or filing or registration with, any court or any governmental agency or body is required for the execution, delivery and performance of this Agreement or the applicable Purchase Agreement, if anythreatened, by the Company and Commission or by any authority administering any state securities law. The Agent may waive, in writing or otherwise, the consummation by the Company performance of any one or more of the transactions contemplated hereby; andconditions specified in this Section 5 or extend the time for their performance.
Appears in 1 contract
Conditions of the Agents’ Obligations. The obligation of the Agents, as the agents of the Company, under this Agreement to solicit offers to purchase the Notes, the obligation of any person who has agreed to purchase Notes to make payment for and take delivery of the Notes, and the obligation of any Agent to purchase the Notes pursuant to any Purchase Agreement, is subject to the accuracy, on each Representation Date, of the representations and warranties of the Company contained in this Agreement, to the accuracy of the statements of the Company's officers made in any certificate furnished pursuant to the provisions of this Agreement, to the performance by the Company of its obligations under this Agreement and to each of the following additional terms and conditions:
(a) The Prospectus as amended or supplemented (including the Pricing Supplement) with respect to the Notes 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 and in accordance with Section 3(a) and 3(k); no stop order suspending the effectiveness of the Registration Statement or any part thereof nor any order directed to any document incorporated by reference in any Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or any Prospectus or otherwise shall have been complied withwith to the reasonable satisfaction of the Agents. No order suspending the sale of the Notes in any jurisdiction designated by the Agents pursuant to Section 3(h) hereof shall have been issued, and no proceeding for that purpose shall have been initiated or threatened.
(b) No Agent shall have discovered and disclosed counsel to the Company that the Registration Statement or any Prospectus or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Agents, is material shall have furnished to such Agent such opinion or omits to state a fact whichopinions, in dated the opinion of such counselClosing Date, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident with respect to the authorizationincorporation of the Company, form and the validity of this Agreement, each Purchase Agreement, if any, the Indenture, the Notes, the Registration Statement Statement, the Prospectus and each Prospectus, other related matters as such Agent may reasonably request; and all other legal matters relating to this Agreement and each Purchase Agreement, if any, and the transactions contemplated hereby and thereby shall be satisfactory in all material respects to such counsel for the Agents, and the Company shall have furnished to received such counsel all documents papers and information that as they may reasonably request to enable them to pass upon such matters.;
(dc) Sidley & Austin, counsel to The General Counsel of the Company, Company or other counsel to for the Company satisfactory to the Agents, Agents shall have furnished to the Agents such Agent their written opinionopinions, as counsel to the Company, addressed to the Agents and dated the Closing Date, in form and substance acceptable satisfactory to the Agents such Agent, to the effect that:
(i) The Indenture Company has the authorized equity capitalization as set forth in the Prospectus;
(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 corporate power and authority to own its properties and conduct its business as described in the Prospectus;
(iii) To such counsel's knowledge and other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or to which any property of the Company or any of its subsidiaries is subject, other than proceedings which would not reasonably be expected, individually or in the aggregate, to have a material adverse effect on the 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;
(iv) This Agreement and any applicable Purchase Agreement have been duly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act, and, assuming due authorization, execution and delivery 10 thereof by the Trustee, constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its termsCompany;
(iiv) The Notes have been duly authorized by the Company, Company and, when the terms of a Note the Notes and of its their issuance and sale have been duly established in accordance with the IndentureIndenture (including any supplemental indenture thereto), this Agreement and the applicable Purchase Agreement, if any, and when such Note each of the Notes has been duly executed, authenticated, issued and delivered in the manner provided in the Indenture (including any supplemental indenture thereto) and paid for in accordance with this Agreement and the applicable Purchase Agreement, if any, such Note will be duly and validly issued and delivered by the Company and will constitute a valid and legally binding obligation of the Company, Company entitled to the benefits of the Indenture (including any supplemental indenture thereto) and enforceable against the Company in accordance with its terms and entitled terms, except to the benefits of extent enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally or by general equitable principles (whether considered in a proceeding in equity or at law); and the IndentureIndenture (including any supplemental indenture thereto) and the Notes conform in all material respects to the descriptions thereof in the Prospectus;
(iiivi) The Registration Statement was declared effective Indenture (including any supplemental indenture thereto) has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the Trustee, the Indenture constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except to the extent enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally or by general equitable principles (whether considered in a proceeding in equity or at law); and the Indenture has been duly qualified under the Trust Indenture Act;
(vii) The issue and sale of the Notes, the compliance by the Company with all of the provisions of the Notes, the Indenture (including any supplemental indenture thereto), this Agreement and any applicable Purchase Agreement and the consummation of the transactions herein and therein contemplated will not 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 is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions result in any violation of the provisions of the Certificate of Incorporation, as amended, or By-laws of the Company or 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 properties;
(viii) No consent, approval, authorization, order, registration or qualification of or with any court or any governmental agency or body is required for the solicitation of offers to purchase the Notes, the issue and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, any applicable Purchase Agreement, or the Indenture (including any supplemental indenture thereto), except such as have been obtained under the Securities Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the solicitation by the Agents of offers to purchase the Notes from the Company and with purchases of the date specified Notes by an Agent as principal, as the case may be, in such opinion; any required filing of each case in the Prospectus pursuant to Rule 424(b) of the Rules and Regulations has been made within the time period prescribed by the Rules and Regulations; and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and, to the knowledge of such counsel, no proceeding for that purpose is pending or threatened by the Commissionmanner contemplated hereby;
(ivix) At As of the Effective Time, the Registration Statement (including all documents incorporated by reference therein) complied, and on the date of this Agreement, the Prospectus (including all documents incorporated by reference therein) complies, and any further amendments or supplements thereto made by the Company on or prior to the date of such opinion comply (other than, in each case, the financial statements and related schedules and other financial and statistical data included or incorporated by reference therein and the Form T-1 under the Trust Indenture Act, as to which such counsel need express no opinion) ), as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act, the Exchange Act and the applicable rules and regulations under said Acts;
(v) The Notes, the Indenture and the capital stock of the Company conform in all material respects to the descriptions thereof contained or incorporated by reference in the Registration Statement and the Prospectus; and the provisions of the contracts, agreements and instruments (as the same may be in effect on the Closing Date) summarized in the Prospectus, any supplement thereto or any document incorporated by reference therein, conform in all material respects to the descriptions thereof in the Prospectus, any supplement thereto or any document incorporated by reference therein;
(vix) To such counsel's knowledge, there are no contracts or other documents which 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 so filed;; and
(viixi) This Agreement The Registration Statement was declared effective under the Securities Act on April 30, 1999; any required filing of the Prospectus pursuant to Rule 424(b) of the Rules and each Purchase AgreementRegulations has been made within the applicable time period prescribed for such filing by the Rules and Regulations; and, if anyto our knowledge, have no stop order suspending the effectiveness of the Registration Statement has been duly authorized issued, to our knowledge, no proceeding for that purpose is pending or threatened by the Commission. In addition, such counsel shall state that in the course of the preparation of the Registration Statement and the Prospectus, such counsel has considered the information set forth therein in light of the matters required to be set forth therein and that such counsel has participated in conferences with officers and representatives of the Company, including its independent public accountants and this Agreement representatives of and each Purchase Agreementcounsel for the Agents, if any, executed and delivered prior to or at during the time course of delivery of such opinion have been duly executed and delivered by which the Company;
(viii) The sale contents of the Notes Registration Statement and Prospectus and related matters were discussed and, although such counsel shall not have independently checked the accuracy or completeness of, or otherwise verified, and accordingly are not passing upon, and shall not assume responsibility for, the accuracy, completeness or fairness of the statements contained in or incorporated by reference in the CompanyRegistration Statement and Prospectus (except as set forth in the last clause of subparagraph (v) above), compliance by and that such counsel has, to the extent such counsel may properly do so in the discharge of its professional responsibilities as experienced securities law practitioners, relied upon the judgment and statements of officers and representatives of the Company with all respect to facts necessary to the determination of materiality. As a result of such consideration and participation, nothing has come to the attention of such counsel which causes such counsel to believe that the Registration Statement, as of the provisions of this Agreement, each Purchase AgreementEffective Time or, if anylater, executed and delivered prior to or at the time of delivery of such opinion, the Indenture and the Notes and the consummation by the Company as of the transactions contemplated hereby and thereby will not result in a breach or violation of any date of the terms Company's most recent filing of an Annual Report on Form 10-K, contained an untrue statement of a material fact or provisions ofomitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or constitute a default underthat the Prospectus, any agreement or instrument scheduled in such opinion (as in effect on of the date of such opinion), andincludes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, except for in the registration light of the Notes circumstances under which they were made, not misleading (except that, in each case, such counsel need not express any belief as to the Securities Act financial statements and such consents, approvals, authorizations, registrations related schedules and other financial data included or qualifications as may be required incorporated by reference in the Registration Statement or the Prospectus or the Form T-1 under the Trust Indenture Act). In rendering such opinion, such counsel may state that their opinion is limited to the federal laws of the United States, the Exchange Act and applicable state or foreign securities laws in connection with the offer and sale of the NotesState of New York and the General Corporation Law of the State of Delaware and rely as to matters of fact upon the representations contained in this Agreement and the certificates of officers of the Company and of public officials.
(d) The Company shall have furnished to the Agents on the Closing Date a letter of ▇▇▇▇▇ & Young LLP, no consentaddressed jointly to the Company and the Agents and dated the Closing Date, approvalof the type described in the American Institute of Certified Public Accountants' Statement on Auditing Standards No. 72, authorization and covering such additional financial statement items and procedures (including a review of interim financial statements specified in the American Institute of Certified Public Accountants' Statement on Auditing Standards No. 71) as the Agents may reasonably request and in form and substance satisfactory to the Agents.
(e) The Company shall have furnished to the Agents a certificate, dated the Closing Date, of its Chief Financial Officer or order of, Treasurer and its General Counsel or filing or registration with, any court or any governmental agency or body is required for other counsel stating that the execution, delivery representations and performance warranties of the Company in Section 1 of this Agreement are true and correct as of such date; the Company has performed all of its agreements contained in this Agreement which are required to be performed on or before the date of such certificate and the condition set forth in subsection 5(f) of this Agreement have been fulfilled; and no stop order suspending the effectiveness of the Registration Statement or any part thereof nor any order directed to any document incorporated by reference in any Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission;
(i) Neither the Company nor any of its subsidiaries shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the 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 Prospectus and (ii) since such date there shall not have been any change in the capital stock (other than issuances of common stock pursuant to benefit plans or stock options, repurchases by the Company or conversion of outstanding convertible securities) or long-term debt (except changes as a result of maturities, sinking fund payments, amortization of debt discount or currency fluctuations) of the Company or any of its subsidiaries (otherwise than as set forth or contemplated in the Prospectus or in a supplement thereto) or any change in or affecting, or any adverse development which affects, the business, properties, financial position, stockholders' equity or results of operations of the Company and its subsidiaries as a whole, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Agents, so material and adverse as to make it impracticable or inadvisable to proceed with the solicitation of offers to purchase Notes or offers and sales of Notes, or with the purchase of Notes as principal pursuant to an applicable Purchase Agreement, if anyas the case may be;
(g) Subsequent to the execution and delivery of this Agreement, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities of the Company or securities generally on the New York Stock Exchange, Inc.; (ii) a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities; (iii) the outbreak or escalation of hostilities involving the United States or the declaration by the Company United States of a national emergency or war, if the effect of any such event specified in this subsection (g) in the judgment of such Agent makes it impracticable or inadvisable to proceed with the solicitation of offers to purchase Notes or offers and sales of Notes or the consummation by purchase of Notes from the Company as principal, pursuant to the applicable Purchase Agreement or otherwise, as the case may be, on the terms and in the manner contemplated in the Prospectus; and
(h) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any downgrading in the rating accorded the Company's debt securities by ▇▇▇▇▇'▇ Investor Service, Inc., Standard & Poors Corporation or Duff and ▇▇▇▇▇▇, Inc. or (ii) any such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the transactions contemplated hereby; andCompany's debt securities.
Appears in 1 contract
Sources: Distribution Agreement (Maytag Corp)
Conditions of the Agents’ Obligations. The obligation of the Agents, as the agents of the Company, under this Agreement to solicit offers to purchase the Notes, the obligation of any person who has agreed to purchase Notes to make payment for and take delivery of the Notes, and the obligation of any Agent to purchase the Notes pursuant to any Purchase Agreement, is subject to the accuracy, on each Representation Date, of the representations and warranties of the Company contained in this Agreement, to the accuracy of the statements of the Company's officers made in any certificate furnished pursuant to the provisions of this Agreement, to the performance by the Company of its obligations under this Agreement and to each of the following additional terms and conditions:
(a) The Prospectus as amended or supplemented (including the Pricing Supplement) with respect to the Notes 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 and in accordance with Section 3(a) and 3(k); no stop order suspending the effectiveness of the Registration Statement or any part thereof nor any order directed to any document incorporated by reference in any Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Company or the Agents, threatened by the Commission; and any request of additional information required by the Commission for inclusion of additional information to be included in the Registration Statement or any Prospectus or otherwise shall have been complied withso included. No order suspending the sale of the Notes in any jurisdiction designated by the Agents pursuant to Section 3(h) hereof shall have been issued, and no proceeding for that purpose shall have been initiated or, to the knowledge of the Company or the Agents, threatened.
(b) No Agent shall have discovered and disclosed to the Company on or prior to the Representation Date that the Registration Statement or any the Prospectus or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of the counsel for the Agents, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to necessary for the authorization, form authorization and validity of this Agreement, each any Purchase Agreement, if any, the Indenture, the Notes, the Registration Statement and each the Prospectus, and all other legal matters relating to this Agreement and each any Purchase Agreement, if any, Agreement and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Agents, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Sidley & Austin, counsel to the Company, or other counsel to the Company satisfactory to the Agents, shall have furnished to the Agents their written opinion, as counsel to the Company, addressed to the Agents and dated the Closing Date, in form and substance acceptable to the Agents to the effect that:
(i) The Indenture has been duly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act, and, assuming due authorization, execution and delivery 10 thereof by the Trustee, constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms;
(ii) The Notes have been duly authorized by the Company, and, when the terms of a Note and of its issuance and sale have been duly established in accordance with the Indenture, this Agreement and the applicable Purchase Agreement, if any, and when such Note has been duly executed, authenticated, issued and delivered in the manner provided in the Indenture and paid for in accordance with this Agreement and the applicable Purchase Agreement, if any, such Note will be duly and validly issued and delivered by the Company and will constitute a valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms and entitled to the benefits of the Indenture;
(iii) The Registration Statement was declared effective under the Securities Act as of the date specified in such opinion; any required filing of the Prospectus pursuant to Rule 424(b) of the Rules and Regulations has been made within the time period prescribed by the Rules and Regulations; and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and, to the knowledge of such counsel, no proceeding for that purpose is pending or threatened by the Commission;
(iv) At the Effective Time, the Registration Statement (including all documents incorporated by reference therein) complied, and on the date of this Agreement, the Prospectus (including all documents incorporated by reference therein) complies, and any further amendments or supplements thereto made by the Company on or prior to the date of such opinion comply (other than, in each case, the financial statements and related schedules and other financial and statistical data included or incorporated by reference therein and the Form T-1 under the Trust Indenture Act, as to which such counsel need express no opinion) as to form in all material respects with the requirements of the Securities Act, the Exchange Act and the applicable rules and regulations under said Acts;
(v) The Notes, the Indenture and the capital stock of the Company conform in all material respects to the descriptions thereof contained or incorporated by reference in the Registration Statement and the Prospectus; and the provisions of the contracts, agreements and instruments (as the same may be in effect on the Closing Date) summarized in the Prospectus, any supplement thereto or any document incorporated by reference therein, conform in all material respects to the descriptions thereof in the Prospectus, any supplement thereto or any document incorporated by reference therein;
(vi) To such counsel's knowledge, there are no contracts or other documents which 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 so filed;
(vii) This Agreement and each Purchase Agreement, if any, have been duly authorized by the Company, and this Agreement and each Purchase Agreement, if any, executed and delivered prior to or at the time of delivery of such opinion have been duly executed and delivered by the Company;
(viii) The sale of the Notes by the Company, compliance by the Company with all of the provisions of this Agreement, each Purchase Agreement, if any, executed and delivered prior to or at the time of delivery of such opinion, the Indenture and the Notes and the consummation by the Company of the transactions contemplated hereby and thereby will not result in a breach or violation of any of the terms or provisions of, or constitute a default under, any agreement or instrument scheduled in such opinion (as in effect on the date of such opinion), ; and, except for the registration of the Notes under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Trust Indenture Act, the Exchange Act and applicable state or foreign securities laws in connection with the offer and sale of the Notes, no consent, approval, authorization or order of, or filing or registration with, any court or any governmental agency or body is required for the execution, delivery and performance of this Agreement or the applicable Purchase Agreement, if any, by the Company and the consummation by the Company of the transactions contemplated hereby; and
(ix) The Company is not required to be registered, and is not regulated, as an "investment company," as such term is defined under the United States Investment Company Act of 1940. In addition, such counsel shall state that in the course of the preparation of the Registration Statement and the Prospectus, such counsel has considered the information set forth therein in light of the matters required to be set forth therein and that such counsel has participated in conferences with officers and representatives of the Company, including its independent public accountants and, with respect to the Prospectus, representatives of and counsel for the Agents, during the course of which the contents of the Registration Statement and the Prospectus and related matters were discussed and, although such counsel shall not have independently checked the accuracy or completeness of, or otherwise verified, and accordingly are not passing upon, and shall not assume responsibility for, the accuracy, completeness or fairness of the statements contained or incorporated by reference in the Registration Statement and the Prospectus (except as set forth in subparagraph (v) above), and that such counsel has relied as to materiality, to a large extent, upon the judgment of officers and representatives of the Company, as a result of such consideration and participation, nothing has come to the attention of such counsel which causes such counsel to believe that the Registration Statement as of its Effective Time or, if later, as of the date of the Company's most recent filing of an Annual Report on Form 10-K (including such Annual Report on Form 10-K), 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 Prospectus, as of the date of such opinion, includes an untrue statement of a material fact 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, in each case, such counsel need not express any belief as to the financial statements and related schedules and other financial and statistical data included or incorporated by reference in the Registration Statement or the Prospectus). In rendering such opinion, such counsel may (A) state that their opinion is limited to the federal laws of the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware, (B) rely as to matters of fact upon the representations contained in this Agreement and the certificates of officers of the Company and it subsidiaries and of public officials; PROVIDED that such counsel shall furnish copies thereof to the Agents and state that they believe that the Agents and they are justified in relying upon such certificates and (C) state that their opinions set forth in subparagraphs (A) and (B) above are subject to the qualification that the enforceability of the Company's obligations under the Indenture and the Notes may be limited by 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) or by an implied covenant of good faith and fair dealing.
(e) The General Counsel or other counsel of the Company shall have furnished to the Agents his written opinion, addressed to the Agents and dated the Closing Date, in form and substance satisfactory to the Agents to the effect that:
(i) The Company and each of its significant subsidiaries (as defined in Rule 405 under the Securities Act and listed in Annex 1(c)) have been duly incorporated and are validly existing as corporations in good standing under the general corporation laws of their respective jurisdictions of incorporation and have all corporate power and authority necessary to own or hold their respective properties and conduct the businesses in which they are engaged;
(ii) All of the issued and outstanding shares of capital stock of each significant subsidiary have been duly and validly authorized and issued and are fully paid, non-assessable and (except for directors' qualifying shares) owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(iii) To such counsel's knowledge, and other than as set forth or contemplated 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 are reasonably expected to have a material adverse effect on the business, properties, 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 by governmental authorities or by others;
(iv) The sale of the Notes by the Company and the compliance by the Company with all of the provisions of this Agreement, each Purchase Agreement, if any, executed and delivered prior to or at the time of delivery of such opinion and the Indenture, and the consummation of the transactions contemplated hereby and thereby will not (A) result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material indenture or loan agreement known to such counsel or (B) to the knowledge of such counsel, result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material, mortgage, deed of trust or other material agreement or instrument to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant 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 charter or by-laws of the Company or any significant subsidiary or 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 or assets (except that such counsel need express no opinion with respect to applicable state or foreign securities laws);
(v) To such counsel's knowledge, neither the Company nor any significant subsidiary (A) is in violation of its charter or by-laws, (B) is in default, and no event has occurred, which, with notice or lapse of time or both, would constitute a default, in the due performance or observance of any term, covenant or condition contained in any material indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject or (C) is in violation of any law, ordinance, governmental rule, regulation or court decree to which it or its property or assets may be subject or has failed to obtain any license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or to the conduct of its business except, in the case of clauses (B) and (C), for those defaults, violations or failures which, either individually or in the aggregate, are not reasonably expected to have a material adverse effect on the business, properties, financial position, stockholders' equity or results of operations of the Company and its subsidiaries taken as a whole; and
(vi) To such counsel's knowledge, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to include any securities owned or to be owned by such person in the securities registered pursuant to the Registration Statement or, except as described in the Prospectus or listed in Annex 1(f), to require the Company to file any other registration statement under the Securities Act (other than a registration statement on Form S-8) with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in any securities being registered pursuant to any other registration statement filed by the Company under the Securities Act. In rendering such opinion, such counsel may (i) state that his opinion is limited to the federal laws of the United States, the laws of the State of Nebraska and the General Corporation Law of the State of Delaware and (ii) rely as to matters of fact upon certificates of officers of the Company and its subsidiaries and of public officials; PROVIDED that such counsel shall furnis
Appears in 1 contract
Conditions of the Agents’ Obligations. The obligation obligations of the Agents, Agent as the agents of the Company, under this Agreement to solicit offers to purchase the Notes, the obligation of any person who has agreed to purchase Notes to make payment for and take delivery of the Notes, and the obligation of any Agent to purchase the Notes pursuant to any Purchase Agreement, is provided herein shall be subject to the accuracy, on each Representation Date, of the condition that all representations and warranties and other statements herein of the Company contained in this Agreementare materially true and correct, to the accuracy of the statements of the Company's officers made in any certificate furnished pursuant to the provisions of this Agreement, to the performance by condition that the Company shall have materially performed all of its obligations under this Agreement hereunder which are to be performed prior to the sale of the Common Shares and closing hereunder, and to each the satisfaction of the following additional terms and conditionsconditions on or before each Closing Date:
(a1) The Prospectus as amended or supplemented (including the Pricing Supplement) with respect to the Notes 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 and in accordance with Section 3(a) and 3(k); no No stop order suspending the effectiveness offer and/or sale of the Registration Statement or any part thereof nor any order directed to any document incorporated by reference Common Shares in any Prospectus state shall have been issued and no proceeding for that purpose shall have been initiated or threatened by or, to the Commission; and any request knowledge of the Commission for inclusion Company or the Agent, threatened, by any State.
(2) At each Closing Date, the Company shall deliver to the Agent a written statement of additional information officers of the Company, in form and substance satisfactory to the Registration Statement or any Prospectus or otherwise shall have been complied with. No Agent certifying that, at that date, (i) the representations and warranties of the Company pursuant to Section 2 of this Agreement are true and correct in all material respects, (ii) the Company has performed all of the obligations required of it pursuant to this Agreement in all material respects, and (iii) no order suspending the qualification or exemption of the Common Shares under any state securities or Blue Sky law or preventing or purporting to prevent the offer and sale of the Notes in any jurisdiction designated by the Agents pursuant to Section 3(h) hereof shall have Common Shares has been issued, and no proceeding for that purpose shall have been initiated proceedings therefor are pending or threatened, by the Securities and Exchange Commission or by any authority administering any state securities or Blue Sky law.
(b3) No The Agent shall have discovered received such opinion or opinions as the Agent may reasonably require, dated as of each Closing Date, in form and disclosed substance satisfactory to the Company that Agent, with respect to the Registration Statement or any Prospectus or any amendment or supplement thereto contains an untrue statement sufficiency of a fact which, in the opinion of counsel for the Agents, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All all corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, each Purchase Agreement, if any, the Indenture, the Notes, the Registration Statement and each Prospectus, and all other legal matters relating to this Agreement and each Purchase Agreement, if any, and the transactions contemplated hereby and thereby shall be satisfactory in all material respects to counsel for the Agentshereby, and the Company shall have furnished to said counsel such counsel all documents and information that as they may reasonably request to enable have requested for the purpose of enabling them to pass upon such matters.
(d) Sidley & Austin, counsel to the Company, or other counsel to the Company satisfactory to the Agents, shall have furnished to the Agents their written opinion, as counsel to the Company, addressed to the Agents and dated the Closing Date. The Agent may waive, in form and substance acceptable to writing or otherwise, the Agents to the effect that:
(i) The Indenture has been duly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act, and, assuming due authorization, execution and delivery 10 thereof by the Trustee, constitutes a valid and legally binding obligation performance of any one or more of the Company enforceable against the Company in accordance with its terms;
(ii) The Notes have been duly authorized by the Company, and, when the terms of a Note and of its issuance and sale have been duly established in accordance with the Indenture, this Agreement and the applicable Purchase Agreement, if any, and when such Note has been duly executed, authenticated, issued and delivered in the manner provided in the Indenture and paid for in accordance with this Agreement and the applicable Purchase Agreement, if any, such Note will be duly and validly issued and delivered by the Company and will constitute a valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms and entitled to the benefits of the Indenture;
(iii) The Registration Statement was declared effective under the Securities Act as of the date conditions specified in such opinion; any required filing of the Prospectus pursuant to Rule 424(b) of the Rules and Regulations has been made within this Section 5 or extend the time period prescribed by the Rules and Regulations; and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and, to the knowledge of such counsel, no proceeding for that purpose is pending or threatened by the Commission;
(iv) At the Effective Time, the Registration Statement (including all documents incorporated by reference therein) complied, and on the date of this Agreement, the Prospectus (including all documents incorporated by reference therein) complies, and any further amendments or supplements thereto made by the Company on or prior to the date of such opinion comply (other than, in each case, the financial statements and related schedules and other financial and statistical data included or incorporated by reference therein and Form T-1 under the Trust Indenture Act, as to which such counsel need express no opinion) as to form in all material respects with the requirements of the Securities Act, the Exchange Act and the applicable rules and regulations under said Acts;
(v) The Notes, the Indenture and the capital stock of the Company conform in all material respects to the descriptions thereof contained or incorporated by reference in the Registration Statement and the Prospectus; and the provisions of the contracts, agreements and instruments (as the same may be in effect on the Closing Date) summarized in the Prospectus, any supplement thereto or any document incorporated by reference therein, conform in all material respects to the descriptions thereof in the Prospectus, any supplement thereto or any document incorporated by reference therein;
(vi) To such counsel's knowledge, there are no contracts or other documents which 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 so filed;
(vii) This Agreement and each Purchase Agreement, if any, have been duly authorized by the Company, and this Agreement and each Purchase Agreement, if any, executed and delivered prior to or at the time of delivery of such opinion have been duly executed and delivered by the Company;
(viii) The sale of the Notes by the Company, compliance by the Company with all of the provisions of this Agreement, each Purchase Agreement, if any, executed and delivered prior to or at the time of delivery of such opinion, the Indenture and the Notes and the consummation by the Company of the transactions contemplated hereby and thereby will not result in a breach or violation of any of the terms or provisions of, or constitute a default under, any agreement or instrument scheduled in such opinion (as in effect on the date of such opinion), and, except for the registration of the Notes under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Trust Indenture Act, the Exchange Act and applicable state or foreign securities laws in connection with the offer and sale of the Notes, no consent, approval, authorization or order of, or filing or registration with, any court or any governmental agency or body is required for the execution, delivery and performance of this Agreement or the applicable Purchase Agreement, if any, by the Company and the consummation by the Company of the transactions contemplated hereby; andtheir performance.
Appears in 1 contract
Sources: Agency Agreement (Corvu Corp)
Conditions of the Agents’ Obligations. The obligation obligations of the Agents, as the agents of the Company, under this Agreement Agents to solicit offers to purchase Notes from the Notes, the obligation of any person who has agreed to purchase Notes to make payment for and take delivery of the Notes, and the obligation of any Agent to purchase the Notes pursuant to any Purchase Agreement, is Company are subject to the accuracy, on each Representation Date, accuracy of the representations and warranties of the Company contained in this Agreement, to Agreement on the accuracy of the statements of the Company's officers made in any certificate furnished pursuant to the provisions date of this Agreement, when any amendment to the Registration Statement becomes effective (including the filing with the Commission of any document incorporated by reference in the Registration Statement), when any amendment or supplement to the Prospectus is filed with the Commission pursuant to the applicable paragraph of Rule 424(b) of the Rules and on each Closing Date, to performance by the Company of its obligations under this Agreement and to each of the following additional terms and conditions:
(a) The Prospectus as amended If filing of the Prospectus, or supplemented (including any supplement thereto, is required pursuant to Rule 424(b), the Pricing Supplement) with respect to the Notes Prospectus, and any such supplement, shall have been filed with in the Commission pursuant to manner and within the time period required by Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing by the Rules and Regulations and in accordance with Section 3(a) and 3(k); and no stop order suspending the effectiveness of the Registration Statement or any part thereof nor any order directed Statement, as amended from time to any document incorporated by reference time, may be in any Prospectus shall have been issued effect and no proceeding proceedings for that such purpose shall have been initiated may be pending before or threatened by the Commission; , and any request requests for additional information on the part of the Commission for inclusion of additional information (to be included in the Registration Statement or any the Prospectus or otherwise shall have been otherwise) must be complied with. No order suspending with to the sale reasonable satisfaction of the Notes in any jurisdiction designated by the Agents pursuant to Section 3(h) hereof shall have been issued, and no proceeding for that purpose shall have been initiated or threatenedAgents.
(b) No Agent shall Since the date of the most recent financial statements included or incorporated by reference in the Prospectus, (i) there must not have discovered and disclosed been any material adverse change or decrease (of the type indicated in paragraphs (ii)(B) or (ii)(C) of Annex D to this Agreement) specified in the most recent letter of the type referred to in Section 5(k) or in paragraph (f) of this Section 6, (ii) there must not have been any material adverse change in the general affairs, prospects, management, business, properties, financial condition or results of operations of the Company that and its subsidiaries taken as a whole, whether or not arising from transactions in the Registration Statement ordinary course of business, except as set forth in or contemplated by the Prospectus, as amended or supplemented at the time of acceptance by the Company of any offer to purchase the Notes, (iii) the Company and its subsidiaries taken as a whole must not have sustained any material loss or interference with their business or properties from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any Prospectus court or legislative or other governmental action, order or decree not described in the Prospectus, as then amended or supplemented at the time of acceptance by the Company of any amendment offer to purchase the Notes, and (iv) there must not have been any downgrading in the rating of any of the Company's long-term debt securities by Standard & Poor's ("S&P") or supplement thereto contains an untrue statement of a fact which▇▇▇▇▇'▇ Investors Service ("Moody's"), if, in the opinion judgment of counsel for the Agents, is material any such development referred to in clause (i), (ii), (iii) or omits (iv) makes it impracticable or inadvisable to state a fact whichproceed with the soliciting of offers to purchase Notes from the Company as contemplated by the Prospectus, in the opinion of such counsel, is material and is required to be stated therein as then amended or is necessary to make the statements therein not misleadingsupplemented.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, each Purchase Agreement, if any, the Indenture, the Notes, the Registration Statement and each Prospectus, and all other legal matters relating to this Agreement and each Purchase Agreement, if any, and the transactions contemplated hereby and thereby shall be satisfactory in all material respects to counsel for the Agents, and the The Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Sidley & Austin, counsel to the Company, or other counsel to the Company satisfactory to the Agents, shall have furnished to the Agents on the date of this Agreement a certificate of the Company, signed by the Chairman of the Board, the President, or any Senior or Administrative Vice President or any Vice President and the principal financial or accounting officer of the Company, dated such date, certifying that the signers have carefully examined the Registration Statement, the Prospectus, the Indenture and this Agreement, and, to the best of their written opinionknowledge, after reasonable investigation, (i) the representations and warranties of the Company in this Agreement are accurate on and as of the date of such certificate and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied as a condition to the obligation of the Agents to solicit offers to purchase the Notes, (ii) there has not been any material adverse change in the general affairs, prospects, management, business, properties, financial condition or results of operations 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 Prospectus, as amended or supplemented as of the date of such certificate, and (iii) no actions to suspend the effectiveness of the Registration Statement, as amended as of the date of such certificate, or to prohibit the sale of the Notes have been taken or threatened by the Commission.
(d) The Agents shall have received on the date of this Agreement from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., Senior Vice President, General Counsel and Secretary of the Company, and Cravath, Swaine & ▇▇▇▇▇, special counsel to the Company, addressed opinions or letters dated such date substantially in the forms set forth in Annex C-1, Annex C-2-A and Annex C-2-B to the Agents and dated the Closing Date, in form and substance acceptable to the Agents to the effect that:this Agreement.
(ie) The Indenture has been duly authorizedAgents shall have received on the date of this Agreement from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, executed and delivered by the Company and duly qualified under the Trust Indenture Acttheir counsel, and, assuming due authorization, execution and delivery 10 thereof by the Trustee, constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance an opinion dated such date with its terms;
(ii) The Notes have been duly authorized by respect to the Company, andthe Notes, when the terms of a Note and of its issuance and sale have been duly established in accordance with the Indenture, the Registration Statement, the Prospectus, this Agreement and the applicable Purchase form and sufficiency of all proceedings taken in connection with the sale and delivery of the Notes. Such opinion and proceedings shall be satisfactory in all respects to the Agents. The Company must have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to render such opinion.
(f) The Agents shall have received, at the date of this Agreement, if any, and when such Note has been duly executed, authenticated, issued and delivered a signed letter from Ernst & Young LLP substantially in the manner provided form of Annex D to this Agreement. All opinions, letters, evidence and certificates mentioned above or elsewhere in the Indenture and paid for in accordance this Agreement will comply with this Agreement only if they are in form and scope reasonably satisfactory to the applicable Purchase Agents and their counsel. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if anyany of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Agents and their counsel, such Note will this Agreement and all obligations of the Agents hereunder may be duly and validly issued and delivered canceled at any time by the Company and will constitute a valid and legally binding obligation Agents. Notice of the Company, enforceable against such cancellation shall be given to the Company in accordance with its terms and entitled writing or by telephone or telegraph confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the benefits offices of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Indenture;
(iii) The Registration Statement was declared effective under the Securities Act as of the date specified in such opinion; any required filing of the Prospectus pursuant to Rule 424(b) of the Rules and Regulations has been made within the time period prescribed by the Rules and Regulations; andAgents, to the knowledge of such counselat ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, no stop order suspending the effectiveness of the Registration Statement has been issued and▇▇▇ ▇▇▇▇, to the knowledge of such counsel▇▇▇ ▇▇▇▇, no proceeding for that purpose is pending or threatened by the Commission;
(iv) At the Effective Time, the Registration Statement (including all documents incorporated by reference therein) complied, and on the date of this Agreement, the Prospectus (including all documents incorporated by reference therein) complies, and any further amendments or supplements thereto made by the Company on or prior to the date of such opinion comply (other than, in each case, the financial statements and related schedules and other financial and statistical data included or incorporated by reference therein and Form T-1 under the Trust Indenture Act, as to which such counsel need express no opinion) as to form in all material respects with the requirements of the Securities Act, the Exchange Act and the applicable rules and regulations under said Acts;
(v) The Notes, the Indenture and the capital stock of the Company conform in all material respects to the descriptions thereof contained or incorporated by reference in the Registration Statement and the Prospectus; and the provisions of the contracts, agreements and instruments (as the same may be in effect on the Closing Date) summarized in the Prospectus, any supplement thereto or any document incorporated by reference therein, conform in all material respects to the descriptions thereof in the Prospectus, any supplement thereto or any document incorporated by reference therein;
(vi) To such counsel's knowledge, there are no contracts or other documents which 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 so filed;
(vii) This Agreement and each Purchase Agreement, if any, have been duly authorized by the Company, and this Agreement and each Purchase Agreement, if any, executed and delivered prior to or at the time of delivery of such opinion have been duly executed and delivered by the Company;
(viii) The sale of the Notes by the Company, compliance by the Company with all of the provisions of this Agreement, each Purchase Agreement, if any, executed and delivered prior to or at the time of delivery of such opinion, the Indenture and the Notes and the consummation by the Company of the transactions contemplated hereby and thereby will not result in a breach or violation of any of the terms or provisions of, or constitute a default under, any agreement or instrument scheduled in such opinion (as in effect on the date of such opinion), and, except for the registration of the Notes under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Trust Indenture Act, the Exchange Act and applicable state or foreign securities laws in connection with the offer and sale of the Notes, no consent, approval, authorization or order of, or filing or registration with, any court or any governmental agency or body is required for the execution, delivery and performance of this Agreement or the applicable Purchase Agreement, if any, by the Company and the consummation by the Company of the transactions contemplated hereby; and.
Appears in 1 contract
Sources: Distribution Agreement (Ashland Inc)